Understanding I-9 Compliance For HR Managers
Employers are responsible for all aspects of I-9 compliance, and thorough HR training is a critical path to compliance. Lookout Services has all the tools necessary for leveraging the full value of our products to ensure the most efficient and reliable I-9 procedures. The case law places liability for even honest mistakes in the company’s hands, so it makes sense to reinforce education on the subject to feel confident that everyone is doing things the right way. Failure in this area of the law subjects the company and its owners and executives to civil and criminal penalties, so proper training of those overseeing employment verification procedures is imperative.
The Climate and the Consequences
Immigration and Customs Enforcement (ICE) has stepped up its enforcement of immigration and employment laws. In FY 2018, ICE initiated almost 7,000 I-9 worksite investigations, which is four times the number of investigations performed in FY 2017. Acting Director of ICE, Derek Benner, told the Associated Press last May that ICE intends to triple those efforts. It’s fair to say that ICE is going on the offensive, and employers must be ready for the possibility that they, too, will be audited and may face prosecution for any wrongdoing, to the fullest extent of the law. This is a good time to reexamine and improve upon your company’s employment eligibility verification procedures and maybe consider using I-9 software to make your life easier. If the surge in ICE audits doesn’t convince you of that, here are some additional reasons.
Good faith may not be enough:
The majority of employers are making a good faith effort to remain compliant with the Immigration and Nationality Act and its accompanying regulations, but a good faith effort may not be enough to protect a business. Courts examining I-9 compliance cases have pushed back against several businesses asserting a good faith defense for noncompliance. In nearly every instance, the courts have upheld ICE’s original judgment that good faith should only be applied in limited circumstances. In short, good faith will not necessarily mitigate flawed procedures or incomplete paperwork.
Fines scale up quickly:
ICE calculates fines by first dividing the number of employees who should have an I-9 form on file by the number of forms that are found to contain “substantive violations.” ICE looks at the overall percentage of forms that fall into this category, considers whether this is the employer’s first, second or third (or more) offense, and uses that equation to determine the fine schedule. For example, let’s suppose a company employs 100 people. During an audit, ICE finds that 20 of those employees, or 20%, have errors on their I-9 forms, and this is the company’s first offense. ICE checks that information against the matrix for the applicable year and fines the employer $876 per violation. That amounts to $17,500 for what were preventable, correctable errors made in good faith. Now let’s suppose that this company was determined to have knowingly employed unauthorized workers. The fine could range from $548 per violation to nearly $20,000 per violation. For 20 violations, that company could be writing a check for $400,000 and find itself, its owners or employees subject to additional penalties and possibly even jail time.
Additional factors to consider:
ICE also considers the aggravating factors listed below. Each of these factors can push fines up an extra 5%.
- Business size;
- Good faith;
- Seriousness of the violations;
- Whether unauthorized workers were involved;
- The company’s history, and
- Cumulative adjustments.
The fact that the company is incorporated does not relieve the individual executives or employees of personal liability. The federal government is serious about I-9 compliance. It has the tools to enforce these laws, and it has demonstrated its determination to use them
HR Training Can Provide Peace of Mind
HR training covers every aspect of I-9 compliance, from how to handle rigorous I-9 form deadlines to improving your retention methods for better organization and responsiveness in updating. Work with a company that focuses on compliance tools such as I-9 Intelligence, which streamlines the process, tracks deadlines and expiration dates and leaves HR departments in control of their I-9 procedures rather than at their mercy. It’s an invaluable tool for ensuring compliance and for reducing workload on HR personnel and executive oversight. Special Request Training is available to companies looking for the personal touch, and HR training can be customized to individual departments.
Businesses cannot afford to leave I-9 compliance up to chance, which is why HR training through a reputable company with I-9 compliance software in place is an ideal solution for avoiding costly mistakes.