Legal Rights of Employer Against an Employee Who Won't Complete I-9

The Department of Homeland Security oversees U.S. employment eligibility.

The Department of Homeland Security oversees U.S. employment eligibility.

Hiring an employee has legal and fiscal ramifications. Making sure that new hires are who they claim to be, and have authorization to work in the U.S., tops an employer's legal responsibility in the eyes of the U.S. Department of Homeland Security. Through its police arm, the U.S. Immigration & Customs Enforcement, or ICE, the department enforces Immigration Reform and Control Act compliance (see Reference 1). This law requires a completed Form I-9 Employment Eligibility Verification for everyone hired after November 6, 1986, even one-day workers (see Reference 2). When an employee fails to meet the I-9 requirement, an employer can deny employment under specific conditions (see Reference 3).

Termination Rights

According to the U.S. Department of Labor, as long as a termination does not stem from discrimination or retaliation for complaints or whistle-blowing, the employer's policies or applicable provisions in any labor agreement it has with the terminated employee's bargaining unit dictate the terms of a dismissal from employment (see Reference 4). Applying the same rules regarding I-9 completion to all employees keeps employers from committing discrimination. For instance, employers can have a policy of terminating any employee who doesn't present the documents needed to complete the I-9 within three business days of their start date. As long as they enforce this policy uniformly and not just in situations where citizenship is suspect, employers can avoid legal and financial ramifications of non-compliance (see Reference 5).

Employer Obligations

Employers have additional rules to follow to avoid discrimination charges related to I-9 compliance. ICE emphasizes that employers cannot specify which documents a new hire must present, nor can they refuse to consider documents listed as acceptable on the I-9 (see Reference 6). They do have the right to reject a document that does not relate to the employee, or that does not seem to be genuine (see Reference 6). The Connecticut Business & Industry Association notes that employers cannot base their hiring decision on the temporary nature or future expiration of an employee's employment authorization (see Reference 5). On the other hand, ICE states that no employer can hire an individual who lacks authorization to work in the U.S (see Reference 6).

Risk

Hiring an employee who won't complete the I-9 exposes the company to fines, penalties and the possibility of losing its business license (see Reference 7). First offense fines for compliance failure alone range from $110 to $1,100 per form. Should that individual be ineligible to work in the U.S. and he's kept on the payroll, additional fines of $375 to $3,200 may apply. Employers with an undocumented employee also risk having their license revoked if they operate in a state that has what the Gable Gotwals law firm refers to as "business death penalty" legislation (see Reference 7). Individuals involved in the decision to hire someone who refuses to complete an I-9, including human resources managers, also face fines and criminal penalties for such noncompliance (see Reference 8).

Audits

Inspectors from the U.S. Immigration & Customs Enforcement audit I-9 records after the agency sends a Notice of Inspection. Employers receiving this audit alert have three working days to gather the I-9 forms, employee list, payroll records and other requested documents such as the firm's articles of incorporation. An existing employee without an I-9 on file would lead to a Notice of Discrepancies that gives the employer and employee an opportunity to establish U.S. employment eligibility and possibly trigger a Notice to Fine (see Reference 9).

 

About the Author

Trudy Brunot began writing in 1992. Her work has appeared in "Quarterly," "Pennsylvania Health & You," "Constructor" and the "Tribune-Review" newspaper. Her domestic and international experience includes human resources, advertising, marketing, product and retail management positions. She holds a master's degree in international business administration from the University of South Carolina.

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