Those who knowingly or negligently hire unauthorized workers are subject to stiff penalties. In addition, to protect legal immigrants from backlash, the IRCA also contains a provision barring discrimination based on citizenship and national origin—a provision that covers far more employees than Title VII of the Civil Rights Act of 1964.
All this sound familiar? Probably, but despite its being active for more than eight years, the law still can catch many employers unawares. For one thing, some find it tricky maneuvering between the employment verification provision and the anti-discrimination rule—employment eligibility must be verified in a method that doesn't violate any of the IRCA's anti-discrimination rules. To make things even trickier, the government currently seems to be fining for even lesser offenses—say, incomplete paperwork.
Peter Schneider, principal at Jericho, New York-based Kaufman, Naness, Schneider & Rosenweig, P.C., a labor and employment law firm, offers some advice on keeping yourself on the right side of the IRCA.
Can we start with the basic requirements of the IRCA?
The law says that within three days of a person being employed, the employer must obtain written verification of both identity and employment eligibility. The government created a form [to obtain this information]. It's called the I-9; and that form asks for certain information about the employee, such as name, address, maiden name, date of birth, Social Security number and so on. The law then asks the employer to review documents presented by the employee that will satisfy the identity and employment-eligibility requirements.
How does the employer know what documents to use?
The government actually did something wise. The I-9 identifies various documents that will satisfy the requirements. Sometimes, instructions that the government gives can overwhelm employers, but these are fairly straightforward. [The I-9 offers a group of A-list documents, such as a passport, that will both establish identity and verify employment eligibility. Employees without A-list documents must provide a document from list B to establish identity (such as a driver's license) and list C to establish employment eligibility (such as a Social Security card).]
What else should employers do in regards to the actual I-9 document?
The document should be kept separately, because the government has the right to come in and ask for it, and you don't want to be searching through all your personnel files. Employers should also make sure that they retain these records—even after the person leaves their employ—for one year after the person leaves.
So far this sounds fairly straightforward. How can an employer go astray?
I've not had a case like this, but I've talked to enough people, and I've heard of it happening: An individual employer wants to [make verification easier]. Government regulation is tough enough in any event. The employer thinks it may incur sanctions if it [unintentionally] hires someone with phony documentation. So the employer decides to hire only people who have documentation that it knows perfectly well is appropriate. So the employer says: "Unless I see a Social Security card, I'm not going to hire that person." The employer feels comfortable looking at a Social Security card and judging whether or not it's authentic, but may not be comfortable looking at a U.S. Citizen ID card and judging its authenticity. [This type of situation] is born of a [fear] of the government coming in and saying: "That was a phony card—you should have recognized it was phony."
So this is where employers could be accused of discrimination?
Yes. They say they want to stick with only the Social Security card. But there are other documents that would be accepted as bona fide substitutes for a Social Security card. That could get them in trouble because there are minorities who don't have Social Security cards, who are here on visas and can produce documentation that would make them eligible. And here is this employer not allowing them to work.
Same for any employer who decides to only accept documentation they feel comfortable with. Say I interview two candidates. I tell them they're going to have to produce a passport. One person can produce a passport and [the other applicant] can't. Maybe it's because he has never traveled out of the country, he has no need for such a thing. That would be a form of discrimination. I've limited the pool from which an applicant can establish employment eligibility and identity.
I would consider that an innocent violation. I don't know if that's an oxymoron. The reason it's innocent is that it wasn't being done for any discriminatory reasons. It was being done for ease of compliance [because, for instance, the employer was more comfortable accepting a driver's license than an unfamiliar Native American tribal document, both of which qualify as identification.]
OK, what if an employer follows the course and accepts all documentation deemed eligible by the IRCA. Later, what they worried about happens: A counterfeit document slips past them. Can they be fined for that?
They can get in trouble for that, under sort of a "reasonable person" standard. If, in the eyes of the Immigration and Naturalization service, [the document is considered] an obvious forgery from a reasonable person's perspective, the employer is in trouble. You may look at something and think it's all right. Then the INS comes in and says it's an obvious forgery, that anyone would have known it was a forgery. It's possible that, because of your lack of familiarity with certain documents, according to their standards you have not done a reasonable enough scrutiny. You have allowed someone to pass a forgery on. You've put your stamp of approval on it.
How can employers make sure this scenario doesn't come to fruition?
They have to make sure they're examining originals and not copies of documents—because that's where you get a lot of [counterfeits]. That's probably the single biggest pitfall for employers. So look at the actual document. Look for documents with erasures or that look like they've been manhandled. [Be wary of] photographs that are too dark for the rest of the document. These documents can be rejected; employers can ask for others. If you're not sure what the original, bona fide document looks like [such as a Certificate of Birth Abroad or a military dependent's ID card], you have a problem. Make yourself familiar with those.
How common is penalization?
I'm not sure that the government would actually acknowledge it, but you see fewer employers cited for employing illegal aliens and more cited for not having the proper paperwork. We believe it's easier for the government to prove violations imposed by the I-9 form than it is to prove an employer knowingly hired an illegal alien. We believe, putting it charitably, that the government is being hyper-technical.
It has hurt employers very much. We've had clients who were sanctioned by the government for having incomplete forms. The government came onto their premises, asked them for their I-9 forms, saw that some of the forms weren't fully prepared, and fined them. Why? Because they left out the address of the business. Now here's an employee that you've hired, who has the legal right to work, has shown the employer the correct identification and employment eligibility. I understand that they didn't fill out the form, but is that worth the violation?
Was it a stiff fine for such a minor oversight?
When the government files a violation, it must impose a fine for each violation. One client who did not put the address of the company had 30 people. The government wanted to impose a fine—not even the minimal amount. I think they started off with a bill for $9,000, stating that the violations were so numerous it would be $300 a violation. For not having the address of the company. [The company eventually worked the amount down, but was indeed forced to pay a fine. Apparently this isn't uncommon. Carmelo Grimaldi, also of the same firm, relates another story: "Oftentimes when a company looks at a driver's license and Social Security card, it'll Xerox those documents and staple them to the I-9. If you look at the copy, you'll clearly see the identification numbers on those documents—the employees' driver's license numbers, their Social Security numbers. We've had clients who've been fined because they didn't take those very same numbers and write them in Section 2 of the form. We tried to explain to [the government officials] that this was just horrible bureaucracy—all you have to do is flip the page and you'll see the numbers. They wouldn't buy that. They cited some obscure regulation that they published on their own to help their own agents out.]
There are always two sides to any law: the spirit of the law and the technical requirements of the law. We just have a real problem when the technical requirements of the law aren't quite being 100% met in the ways we talked about, but certainly the spirit of the law and the legalities are 100% there, and that person is suffering fines. And that is happening. So employers should make sure they dot their i's and cross their t's on this form because the government is looking to the hyper-technical accuracy of what they put in.
Will it ever get easier for employers to comply with the IRCA?
There's a piece of legislation that has gone out of [Congressional] subcommittee and is in committee. The legislation would create a computerized master index of everyone who is eligible for employment. So an employer could call or possibly even [go online] and get the eligibility requirement satisfied. After that, they'd only have to [verify identity]. So the government is making some effort to see if it can make the burden a little bit lighter for employers.
Personnel Journal, September 1995, Vol. 74, No. 9, pp. 151-153.