Risk management: Know who you are hiring Stephen Robertson Nathaniel Brown Garth Day
Sometimes, we can even help the applicant.1996 – Berkeley, SC 2001, 2002 – Navarro, TX• Domestic violence • Criminal Trespass• DWI • Theft • DWI
Legal and regulatory environmentEmployment processBackground checkConsent-based SSN VerificationI-9 documentationE-Verify
Immigration Reform and Control Act of 1986 (IRCA) • Illegal to knowingly recruit, refer for a fee, or hire aliens unauthorized to work • Requires verification of employment authorization of all new hires after November 6, 1986 (Form I-9)• Prohibits discrimination based on national origin or citizenship status (except for unauthorized aliens)
Title VII of the Civil Rights Act of 1964• Prohibits discrimination (without a legitimate business need) based on national origin • Also prohibits discrimination “because an individual has the physical, cultural or linguistic characteristics of a national origin group.”
ICE has shifted its focus from workers to employers• 2009 – ICE steps up “silent raids” – paperwork audits• April 2011 - owners of Chuy’s Mesquite Broiler franchises indicted for hiring unauthorized workers• September 2011 – 5 managers (including the HR manager) at IFCO Systems plead guilty to hiring unauthorized aliens
Employment process DON’Ts• “Are you a US citizen?”• “Place of birth:”• “Where is your accent from?”• “Do you always wear that thing around your head?”• “If not a US citizen, please provide copies of your work authorization with your application.”• Accept Individual Taxpayer Identification Numbers (ITINs) in lieu of SSNs
Employment process DOs• "In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification document form upon hire."• Collect information necessary for a thorough background check • Carefully define job requirements.
Background check reliability depends on identity research.Employment ID DatabaseApplication Associated Name Names DOB SSN Issuance SSN Prev. addresses Address history
Driving records help corroborate identity• Available in most states with only the standard background check authorization.• Provides name, date of birth, and address of license holder.• Does NOT provide license photo or verify that the person listed is your applicant.
Consent-based SSN verification (CBSV)• The ONLY legal pre- • Available through employment means of background screeners or verifying info with the directly from the SSA Social Security ($5,000 set up and $1.50 Administration: per transaction) Name • Requires SSA-89 be completed by applicant Date of birth • Does NOT verify that the Gender person listed is your Social security number applicant.
Form I-9 Section 1
Form I-9 Section 1 When must Section 1 be completed by the employee?
Form I-9 Section 2
Form I-9 Section 2 When must Section 2 be completed by the employer?
Form I-9 acceptable documents
Form I-9 Section 3Completed by employer when:• Previously provided work authorization documents have expired (new or renewed authorization documents must be provided – may be a different document)• Employee rehired within three years of original I-9 completion• Employee name change
Form I-9 Section 3Do not reverify:• US citizens• Permanent resident card (Form I-551)• List B documents (drivers’ license, government/voter ID, etc.)
Form I-9 storage • Must be available for inspection by DOL, DHS, or DOL with three days’ notice • May be electronic (quality scans or e-signature) or paper • Typically stored separate from other records to facilitate inspection• May be stored onsite, offsite, at each work location or centrally for the company – whatever makes sense for the employer so long as quick access is possible
Form I-9 retention Must be retained: • 3 years after hire OR • 1 year after termination whichever is LATER
Form I-9 retention1. Date the employee began work for pay 1. __________ A. Add three years to the date on line 1. A. __________2. The date employment was terminated 2. __________ B. Add one year to the date on line 2. B. __________3. Which date is later; A or B? 3. __________ C. Enter the later date. C. __________Employers must retain Form I-9 until the date on Line C.
What is E-Verify? • Cooperative program between the Social Security Administration and the Department of Homeland Security’s US Citizenship and Immigration Services • Online system for verification of: SSN, name, and DOB match Eligibility to work in the US Photo match for some documents
E-Verify participation requirements • Employers must sign a Memorandum of Understanding with SSA and USCIS • Employers must post notices in Spanish and English • All users must go through painful online tutorials
Who may use E-Verify?• Available to employers for processing within three days of hire (typically with Form I-9 processing) – post-hire, NOT post-offer!• May not be run on existing employees (except government contractors)• Must be run on all new hires once you begin running employees (except government contractors)
E-Verify Form I-9 acceptable documents Form I-9 must be completed but List B documents must have a picture ID
Government contractor optionsGovernment contractors may verify: Employees (new and existing) assigned to a Federal contract only, Employees assigned to a covered Federal contract and new hires throughout the organization, OR Entire workforce (all new hires and all existing employees throughout the entire company)
Government contractor E-Verify-exempt employees• Those hired before 11/06/1986 are exempt Those with active active confidential, secret, or top secret security clearance• Those for whom background investigations have been completed and credentials issues pursuant to Homeland Security Presidential Directive-12
Verification options for gov’t. contractor current employeesOPTION 1:Complete new Form I-9 for each E-Verify-non-exemptemployee (same rules as the process for new employees).
Verification options for gov’t. contractor current employeesOPTION 2:Review previously submitted Form I-9 with the employeeand complete new Form I-9 or updated existing FormI-9 according to E-Verify Supplemental Guide for FederalContractors, September 2010 (attached to handouts).
Form I-9 possible responses • Information from Form I-9 entered into E-Verify system • The possible responses: Employment authorized SSA Tentative Nonconfirmation (TNC) DHS Verification in Process (may lead to TNC)
Response: Employment Authorized If employment is authorized, you must still confirm that the name returned matches the info you provided If there is a difference, request additional verification DHS must respond within 3 business days
Response: Tentative Nonconfirmation Notice to Employee of Tentative Nonconfirmation provided to employee If employee does not contest nonconfirmation, case is resolved and employee is terminated
Contested Tentative Nonconfirmations• Eight government workdays to contact the SSA/DHS to resolve the issue.• The employee continues to work.• No adverse action taken against employee, including delaying start date or limiting training.
Final Nonconfirmation• Employee is terminated and case is closed in E-Verify.
Questions? Attached to printed slides: • DHS Form I-9 Process in a Nutshell • USCIS E-Verify Supplemental Guide for Federal Contractors Free webinars and recertification credit available. Visit http://www.imperativeinfo.com for the schedule of upcoming presentations.Mike Coffey, SPHRPresidentImperative Information Group(877) 473-2287