Addressing Compliance Challenges for Employers – The 10th Annual FBA Worksite Enforcement and Immigration Conference

The 10th annual Federal Bar Association Conference on Worksite Enforcement and Immigration took place on April 20, and was co-chaired by Margaret “Peggy” McCormick, a founding partner of Minsky, McCormick & Hallagan, P.C. Peggy McCormick established the conference ten years ago to address the ever-evolving issues facing employers and human resource managers, as well as labor, employment and immigration attorneys, with regard to I-9 compliance.

More than ever, United States employers face significant challenges finding and retaining talented workers. For companies hiring foreign workers, obstacles such as limited visa options, the H-1B visa cap and Congressional inaction on any type of immigration reform, complicate the situation even further.  The conference covered all aspects of these challenges, from the initial hiring process to defending against a government audit.

During the hiring process, the employer must walk a fine line to comply with complex immigration laws without falling into discrimination. Once a hire takes place, the employer faces potential liability in the event of a government audit regarding completion of the I-9 Form required to bring the new employee on board.

During a government audit of a company’s I-9 Forms, the employer must produce documents in a very short period of time for government auditors to review and the employer will be directed to make certain corrections on the forms. If the review reveals unauthorized workers, the employer is required to take action regarding the identified workers within a ten day period.  If the government decides to levy a fine against the employer, the employer has thirty days to request a hearing with the OCAHO judge.  Fines before the judge are frequently reduced, based on a variety of factors including the size of the employer, the employer’s good faith efforts towards complying with the law, etc.

Employers attempting to limit their liability through the use of electronic programs designed to minimize errors should approach these programs with caution as these may raise other problems and potential liabilities.  The conference discussed what employers should be aware of when selecting an electronic I-9 program.

Conference Co-Chair Marketa Lindt led the discussion regarding civil and criminal enforcement.

Given the current political climate, emphasis by the Federal Government on enforcement of worksite compliance laws is likely to continue. Competent guidance and representation of employers in all interactions with the Government is critical for employers concerned about both civil and criminal enforcement.

If your company has questions or concerns about worksite compliance and enforcement issues, the attorneys at Minsky, McCormick and Hallagan are well-versed in the issues and are ready for your call.