A number of recent developments have occurred in worker authorization for purposes of the immigration laws.
Form I-9. All employers must use the new Form I-9 beginning no later than January 21, 2017.
Notice of Suspect Documents. An employer who receives a "Notice of Suspect Documents" from the government must take certain steps to avoid liability. It is not sufficient to ask the employees who provided the suspicious documents whether they are authorized to work. (Split Rail Fence Co. v. United States, No. 15-9561, 10th Cir. Dec. 20, 2016). Split Rail Fence Co. received a "Notice of Suspect Document" for 32 employees. After Split Rail showed the notice to the employees, 23 admitted they were not authorized to work (and were fired) and 9 claimed they were authorized to work. Instead of asking the 9 employees to provide new work authorization documentation, Split Rail asked the employees whether they owned houses and cars. The 10th Circuit Court of Appeals agreed with the government that Split Rail should pay a fine for those employees. Split Rail could have avoided liability by showing the notice to the employees, asking the employees to provide new work authorization documentation, and providing the new documentation to the government for verification.
New Discrimination Rules. The government adopted new regulations that make citizenship and national origin discrimination in the hiring process easier for the government to prove. The regulations assert that treating workers differently is discrimination even if there is no hostility to the group, even if there is no economic harm to the employee, and even if no worker complains. The government is using and will continue to use E-Verify to monitor whether a large percentage of permanent resident employees provide a permanent resident card to prove identity and work authorization. If so, the government may investigate and may impose fines against the employer. To avoid liability, the employer must provide a legitimate, nondiscriminatory reason for the large percentage of permanent resident cards, such as, the employees voluntarily provided the documents without prompting from the employer. In other words, the employees must have complete freedom to choose from the List of Acceptable Documents which document(s) to present without the employer suggesting a preference. Also, if the employee presents three documents to the employer (such as, a driver's license, Social Security card and permanent resident card), the employee, not the employer, must decide which of the three documents the employee wants the employer to use in completing Section 2 of Form I-9. Although the regulations are subject to challenge for many legal reasons, employers should review their hiring practices and make any necessary changes to minimize liability.
These changes occurred in a final rule issued on December 16, 2016, which went into effect on January 18, 2017. As an example in the preamble to the final rule, the Homeland Security Department often will refer an employer to the Department of Justice if a large percentage of permanent resident employees have provided a green card to prove identity and work authorization, but U.S. citizen employees present driver’s licenses and Social Security cards. The circumstances indicate that E-Verify statistics will be a large part of the number of complaints or independent investigations by the government. Many employers may innocently violate these rules thinking they are doing the right things by asking for more or different documents to complete Form I-9. The validity of these new rules will ultimately have to be tested in the courts, as most of the issues turn on a statutory provision relating to "intent to discriminate."
