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Counseling the Client Regarding Form I-9 Compliance and Discrimination
Form I-9, Employment Eligibility Verification (“Form I-9”) is used to document identity and work authorization of persons employed in the U.S. Every employer is required to correctly execute them within three days of an employee beginning to work for pay but many organizations find the process challenging. Not all companies have Form I-9 policies and many which do, have not looked at their policies in many years. As a result, they may face significant fines and business interruptions if they are caught up in one of the increasingly common Form I-9 Audits. Advising employers to comply and providing Form I-9 execution training may create significant civil liability though because the federal government aggressively pursues civil actions for discrimination against employers.
A solid understanding of how to assess and rectify Form I-9 compliance issues, while avoiding discrimination claims, is important to attorneys who represent employers and employees and this program is designed to equip attorneys with a basic understanding of the processes, liabilities, and context of the various enforcement mechanisms they will likely encounter if a client runs afoul of the law.
Panelists will provide in-depth guidance on the following topics:
Form I-9 Audits
• Immigration and Customs Enforcement (ICE), within the Department of Homeland Security, audits and investigates immigration violations of work rules
• Review of recent high-profile Form I-9 cases that highlight the importance of addressing document deficiencies
• The costs of not complying are high and it is vital that companies get a sense of their compliance picture, asking: Do we have Form I-9s? Did we use the right version of the form? Are the forms filled out correctly? Do we have acceptable copies of employee documents? How do we structure the corrections to minimize business disruptions? What are our duties to employees without documents? What can we communicate to our employees? And, of course, if the answers to these questions are not ideal, perhaps the most important question is “how do we fix it?”
• Guidance regarding how to fill out the form, identifying which fields are considered merely technical errors rather than substantive errors, and providing exemplars of common document presentations and verification challenges.
• Lawsuits against companies can be viable even when there is no intention of discriminating
• "Intent" is not required when a policy or practice has a "disparate impact" on protected classes of workers (including foreign workers).
• Brief overview of the Title VII legal framework, including disparate impact, disparate treatment, and retaliation claims, with examples during hiring, during employment, and at separation
• Best practices for employers to avoid discrimination in the Form I-9 process, including uniform policies and practices, which avoid civil lawsuits
• Examination of general principles for a Form I-9 policy (No policy is effective if not followed)
• Identification of some of the issues which should be considered in crafting a policy which provides for I-9 compliance and avoids discrimination liability
David A. Berlin, Esq.
David Spaulding, Esq.
Business Immigration, Compliance and Regulatory Enforcement Counsel
Green And Spiegel LLC
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