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Dealing with Work Authorization Concerns

The recent news regarding the Immigration and Customs Enforcement (ICE) actions in Wichita involving a local McDonald's franchise highlights the risk for employers with respect to employee work authorization. This arena involves a wide-ranging variety of fact patterns for employers to work through as no two cases are ever exactly alike. The key points for employers to consider are:

  • I-9:  Make sure your I-9 process is being conducted properly and that your I-9 documents are being fully and accurately completed. In addition, conduct periodic audits of your completed I-9 collection to identify any shortcomings in your process and follow-up on those shortcomings to ensure the process is working as intended.
  • Stray Information:  Promptly respond to all information that calls into question the work authorization of one of your employees. This can be a very tricky issue for employers since there can be varying levels of information presented which may or may not be legitimate. The source of the information should be evaluated in determining the proper response to the situation. The key point for employers on this issue is not to bury your head in the sand and ignore the information. Ignoring can lead to a very negative outcome at some point in the future.
  • Social Security Problems: While somewhat like the stray information category, there are a number of ways a social security number problem can arise. Anytime the concern is generated by some sort of action by the Social Security Administration, employers would be well-served to ensure the employee corrects the problem. If the employee does not correct the problem within a reasonable period of time, the employer should take action.
  • Policies and Procedures:  Employer policies related to verification of employment authorization, falsification of documents (honesty), and provision of social security numbers for payroll purposes all have a bearing on these matters. Ensure your policies are current and up to date in these areas as these policies will provide you with useful tools should concerns arise in this area.
  • Implement Preventative Measures:  Employers are not currently required to participate in the E-Verify system unless they do business in a limited number of states requiring its use or are a federal contractor subject to a contract requiring its use. While not required, employers can voluntarily opt into using E-Verify. While it comes with some strings, the use of E-Verify should allow employers to be comfortable the social security numbers of its new hires are legitimate (or at least the name and number match). 

There are no easy answers for employers in this area. The ability of individuals to create sophisticated documentation that appears genuine and accurate on its face complicates the employer's task of ensuring its workers are all authorized to work in the United States. The increasing willingness of the U.S. Attorney to bring criminal sanctions against employers raises the stakes for those attempting to comply with the law. While this shift can tempt employers to react negatively to members of society that fit the potential profile of an illegal worker, it is also important to remember that not only does the Immigration Reform and Control Act impose the requirement not to employ unauthorized workers but it also imposes anti-discrimination requirements on those same employers. Employers must engage in a fairly delicate balancing act as they work through these types of matters. 


Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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