The Benefit Company
Workplace Compliance Challenges
You have heard on the news that ICE (Immigration and Customs Enforcement) audits and I-9 (Employment Eligibility Verification) enforcement have ramped up considerably in in 2018. As a matter of fact, the number of ICE audits is nearly double so far this year, as compared to all of 2017.
An ICE audit is likely to be a sudden event, with agents showing up at your workplace unannounced. An I-9 inspection is likely to be planned ahead, with an employer receiving a written Notice of Inspection at least 3 days before the inspection. However, government officials may use subpoenas and warrants to obtain I-9 forms without providing 3 days’ notice. Typically, officials from the Department of Homeland Security, employees from the Immigrant and Employee Rights Section of the Department of Justice, or employees from the Department of Labor will inspect an employer’s I-9 compliance. And do not forget, that your I-9s may be reviewed as well as part of an audit of your Affirmative Action Program! The government officials performing the document review may request that the employer bring I-9 forms to an ICE field office, or the inspection may take place at the location where the forms are maintained.
In any case, in order not to violate the law, employers cannot refuse or delay an inspection. Employers are required to retrieve or reproduce electronically stored I-9 forms, and any other documents the officer requests; provide the officer with necessary hardware and software to inspect the electronic documents, if they are maintained that way; and provide the officer with any existing electronic summary of information recorded on the employer’s I-9 forms.
So how can an employer prepare for a possible audit? Here are some suggestions:
- Be Proactive: Perform an internal I-9 audit, and correct any deficiencies found in completion of the forms
- Training: Be sure your staff who are responsible for completing the I-9s with new hires are trained on how to properly complete them
- Prepare: Make sure that your front desk staff know what to do and who to call if an ICE agent or other inspection officer shows up at your office.
According to the U.S. Citizenship and Immigration Services, following is the proper way to correct an error you uncover on an I-9 form:
- Draw a line through the incorrect information
- Enter the correct information
- Initial and date the correction
To correct multiple recording errors on the form, you may redo the section on a new I-9 form and attach it to the old form. A new I-9 form can also be completed if major errors (such as an entire section is left blank) need to be corrected. A note should be included in the file regarding the reason you made changes to an existing form or completed a new one.
Further information, including most common mistakes found on I-9s, can be found online at www.uscis.gov.
Federal Labor Law Posters
If you don’t subscribe to a service that keeps you up to date on federal posting requirements, be sure your postings include at least the ones listed below. They are all available for free online at the web addresses noted.
- EEO is the Law, and EEO is the Law Supplement (dol.gov)
- Employee Polygraph Protection Act (dol.gov)
- Employees Rights Under the National Labor Relations Act (nlrb.gov)
- FLSA/Minimum Wage (dol.gov)
- Family and Medical Leave Act (dol.gov)
- Job Safety and Health-It’s the Law (osha.gov)
- Your Rights Under USERRA (dol.gov)
- Employee Rights for Workers with Disabilities Paid at Special Minimum Wages (dol.gov)
Visit your state Department of Labor website to make sure all state-required posters are up to date, too. In GA, contact www.dol.georgia.gov; in SC, contact www.llr.state.sc.us; and in NC, contact www.labor.nc.gov.
An FMLA Teaching Moment…
It is so easy to get wrapped up in all the complexities of managing FMLA! An important area frequently overlooked is the necessity to adjust time-sensitive goals for an employee (a sales rep, for example) who has been out on approved FMLA leave. Failure to reasonably adjust goals and standards downward to account for the leave period can result in a FMLA retaliation claim, if the employee is disciplined or terminated for failure to meet their unadjusted goals.
This newsletter is not intended to provide legal guidance to you. We welcome your input on topics you would like to learn more about. We encourage you to contact the author of this newsletter, Caryl Kuchman, SPHR, SHRM-SCP at 803.729.8398 or at [email protected] if you have questions on any information presented.