By Samuel J. S. Moheban
January 25, 2024
Federal laws place employers in a challenging position, requiring them to navigate between compliance with laws designed to prevent the employment of persons not eligible to work in the United States and laws punishing discrimination and document abuse. Non-compliance can lead to lawsuits, fines, and potentially even criminal prosecution. While all employers would benefit from consulting a knowledgeable attorney to establish proper employment verification procedures and resolve uncertainties, even seasoned HR professionals acquainted with current best practices should consider obtaining legal advice when specific issues arise. Below are some scenarios in which consulting with knowledgeable legal counsel is highly advised.
1. You are being investigated.
The most urgent scenario necessitating the involvement of a knowledgeable employment attorney is when you are already under investigation. If you receive a Notice of Inspection, an Administrative Subpoena, or are the subject of a site visit, consulting with an attorney can provide valuable insights into obtaining an extension, managing employee concerns, and preparing the best possible response.
2. Your organization is undergoing reorganization or is involved in a merger or acquisition.
Employers facing organizational changes, mergers, or acquisitions can benefit from specific employment verification and record retention rules. Following these rules can save employers significant time by relying on existing records. Engaging an attorney and performing an audit during reorganization, merger, or acquisition can inform employers on the sufficiency of existing records and whether reverification will be necessary for any employees. It is never too early to ensure your policies are compliant and your records are in order.
3. Your organization lacks policies, training, or periodic audits, or there is uncertainty about current practices.
The key defense available to employers facing fines for paperwork violations is the good faith defense. Employers can bolster this defense by having detailed policies and procedures regarding employment verification, training HR staff on those policies and procedures, and periodically auditing records. If policies, training plans, and self-audits are lacking, or there is uncertainty about current practices, an experienced attorney can assist in establishing or improving them.
4. An employee presents unfamiliar or suspicious documents.
Employers must be cautious when discussing the sufficiency of documents presented by employees to avoid discrimination or document abuse allegations. Contacting an attorney familiar with the many forms of employment authorization documents to advise on the sufficiency of an unfamiliar or suspect document reduces the risk of discrimination or document abuse allegations.
5. Negotiating contracts with independent contractors.
While employers aren’t required to verify the employment eligibility of independent contractors, ensuring that workers are properly designated as contractors and that contractors are responsible for verifying their own employees are authorized to work is crucial. A knowledgeable attorney can help employers determine if their designation of a contractor passes legal muster and also suggest contractual provisions that help indemnify the employer in the event unauthorized workers are provided by a contractor.
6. You are required to enroll in E-Verify or are considering doing so.
Many employers are required to enroll in E-Verify due to location, contractual requirements, employing certain non-immigrant workers, or legal orders. Enrolling in E-Verify involves additional obligations, procedures, and recordkeeping requirements. Employers navigating the E-Verify process for the first time would benefit from consulting with an attorney to develop E-Verify specific procedures, training, and best practices.
7. You received a no-match notice or a tentative non-confirmation status.
Occasionally, an employer may receive a notice that a social security number does not match government records or a tentative non-confirmation status during the E-Verify process. Both scenarios require careful action by the employer to notify the employee of the issue. Responding appropriately, without doing too much or too little, is crucial to avoid liability for discrimination or document abuse. Employers with doubts about handling these scenarios would benefit from contacting an attorney.
In sum, navigating the intricate landscape of employment verification challenges demands vigilance and strategic decision-making. The consequences of non-compliance with laws related to employment verification can be severe. As outlined in this article, seeking guidance from a knowledgeable attorney is a proactive and prudent approach. Whether facing an investigation, undergoing organizational changes, lacking comprehensive policies and procedures, dealing with unfamiliar documents, negotiating with contractors, enrolling in E-Verify, or taking action pursuant to a no-match notice or a tentative non-confirmation status, an experienced attorney can provide invaluable insights. By working with legal experts, employers can fortify their compliance efforts, mitigate risks, and ensure a robust defense in the face of regulatory scrutiny. Remember, in the complex realm of employment verification compliance, good counsel can be the compass that guides you through the turbulent waters caused by sometimes contradictory legal obligations. Contact any member of the Employment & Benefits Team for assistance.
This document provides information of a general nature regarding legislative or other legal developments, and is based on the state of the law at the time of the original publication of this article. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations, or issues, and additional facts and information or future developments may affect the subjects addressed. You should not act upon the information in this document without discussing your specific situation with legal counsel.
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