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Here is how HR can help prevent the missteps that could cost your company big in court.
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It should be common knowledge for all employers: Knowingly employing unauthorized foreign workers and neglecting to comply with Form I-9 requirements verifying employment eligibility can land you in trouble.
A pair of recent related cases (U.S. v. Younes and U.S. v. Kearney Hospitality Inc.) before the U.S. District Court for the District of Nebraska highlight what can happen when an employer tries to hire or continues to employ an unauthorized worker.
Hotel operator Paul Younes and an affiliated company, Kearney Hospitality Inc., each pled guilty in February 2016 to charges of unlawfully hiring and continuing to employ an undocumented Mexican worker by arranging for her to work under various aliases to avoid detection.
Younes owns and operates hotels in Nebraska, including a Holiday Inn Express in Hastings, and a Fairfield Inn & Suites in Kearney.
Blanca Gama quit her job as the housekeeping supervisor at the Holiday Inn Express in 2014 when she discovered that she was under investigation by the Social Security Administration (SSA) for working in the country illegally.
According to prosecutors, Younes then arranged for her to work as a housekeeper at the Fairfield Inn & Suites under the name Elizabeth Gomez. He even reclassified her as an independent contractor for payroll purposes, getting around the need for completing a Form I-9. She was the only person in the housekeeping department who worked under that status.
Eventually, Younes rehired her at the Holiday Inn Express under the name Jacqueline Lopez.
He now faces a maximum sentence of six months in prison and a $3,000 fine. Kearney Hospitality, which was charged with harboring an alien in violation of the Immigration and Nationality Act, is facing up to five years of probation and a potential fine of $500,000.
Gama was also charged with various counts of identity theft and false use of a Social Security number.
“The Immigration Reform and Control Act requires all employers to complete a Form I-9 for all employees hired after November 6, 1986,” said Amy Peck, an attorney in the Omaha, Neb., office of Jackson Lewis.
“Knowingly hiring” violations can be based on an employer’s actual or constructive knowledge, she said. “If an employer has knowledge of facts that would lead a person exercising reasonable care to know about the employee’s unauthorized status, it may be said to possess the constructive knowledge needed to support a violation.”
An example of this would be if an employer received notice from the SSA that someone on the payroll was using a Social Security number that didn’t match the name for that number in the SSA database, said Deborah Dyson, an immigration attorney in the San Francisco office of Goswami, Strand & Seaborn.
Peck explained that while many facts could establish constructive knowledge, the most fundamental is when an employer fails to properly complete a Form I-9. “Employers invite trouble by ignoring their obligation to complete I-9s,” she said.
Dyson noted that if employers act in good faith and follow I-9 procedures, they should be safe from liability if federal investigators discover that workers have presented fake documents.
“A formal I-9 compliance policy might be a good way to demonstrate your good faith,” she said. She also recommended employers check out the IMAGE program run by Immigration and Customs Enforcement (ICE), a voluntary program in which companies receive education and training from ICE on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification program.
And while employers are not required to complete I-9s for independent contractors, it is still illegal to knowingly contract with unauthorized workers.
With the government focusing on misclassifying employees as independent contractors, “employers cannot avoid the I-9 verification requirement without risking wage and hour, IRS, and civil and criminal immigration consequences,” Peck said.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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