Compliance &Ethics - Society of Corporate Compliance and Ethics

y Justin EstepOverzealous I-9 compliancecan result in a discriminationlawsuit»»The United States government has drastically increased Form I-9 audits.»»Many Human Resources representatives are misinformed about Form I-9 specifics.»»The United States government is also investigating Form I-9 discrimination.»»Companies are forced to pay heavy Form I-9 discrimination fines.»»Consistent Form I-9 policy is the best deterrence to fines.Compliance & Ethics Professional May/June 2012EstepAs most of corporate America is alreadyaware, Form I-9 compliance enforcementhas increased at an exponentialrate during the Obama administration. SinceJanuary 2010, more than 5,000 companiesfrom many industries have been subject toForm I-9 audits by Immigration and CustomsEnforcement (ICE). 1 Many of theseinvestigations have resulted in finesissued by the U.S government, andsome ICE raids have led to criminalcharges being brought against ownersand managers. An unintended consequenceof Form I-9 ICE raids has beenthe growing number of discriminationsuits brought as a result. These suits are rarelybrought against employers who are maliciouslypreventing people from working, but manytimes are levied against persons who weremisinformed about Form I-9 requirements andbroke the law by being “over compliant.”In order to limit a company’s Form I-9liability, every Human Resources (HR) departmentrepresentative should be trained in therules and regulations governing the I-9 form. Athorough vetting of the M-274 (The Handbookfor Employers: Instructions for Completing aForm I-9) 2 by each HR representative is essentialto avoiding fines and sanctions related to theform. A Form I-9 policy, based on the guidancefound within the M-274, is vital because of theintricacies of the Immigration and NationalityAct (INA), which governs employment verificationlaws related to I-9 forms. The convolutedand detailed INA regulations for I-9 formsresult in investigations of employers who hadnothing but the best intentions. One of themost commonly overlooked regulations inthe INA is the anti-discrimination provision,which prevents employers from asking potentialemployees for specific documents to verifyemployment eligibility. The INA anti-discriminationprovision also prohibits employers fromplacing additional document burdens on workauthorizedemployees.Unfortunately, many HR representativesstill “over document” employees’ workauthorization, exposing their company to discriminationlawsuits brought by the UnitedStates Department of Justice (DOJ) as well asother government entities, or even the wrongedindividuals themselves. In order to complywith employment eligibility verification regulations,an employer must examine either anoriginal document from List A (U.S. passport,Employment Authorization document,50 www.corporatecompliance.org +1 952 933 4977 or 888 277 4977