New guidance by the Department of Justice and Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) in December has caused quite the quagmire for the country’s employers.
The Immigration and Nationality Act, which requires companies to verify work-authorization of employees using I-9 forms to prevent hiring unauthorized workers but prohibits them from taking certain factors into account when determining whether an audit is appropriate, could lead to legal issues for companies throughout the U.S.
“Internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee or employees for any reason,” ICE says in its guidelines. “An employer should also consider whether the audit is or could be perceived to be discriminatory or retaliatory based on its timing, scope or selective nature.”
The Washington Examiner first reported the new guidelines could lead to an increase in discrimination lawsuits for employers trying to determine if an employee is of legal status.
“The message is, ‘Think before you audit — Is this really something you want to undertake?’ Particularly in-house, because it is fraught with landmines,” senior executive counsel for the National Federation of Independent Business Beth Milito tells the paper.
According to the guidelines, while tips could lead to uncovering an unauthorized employee, leads “should not always be presumed to be credible.”
The agencies say, in the case of an internal audit, employers shouldn’t request an employee’s documentation just because photocopies of documents are unclear. It also states unless a federal contractor has an E-Verify clause in its contract, it shouldn’t use the system created to check on a potential employee’s employment eligibility for existing workers.
In addition, it also says an employer is not allowed to ask for specific documents from its employees.
Even if a company finds information was falsified by a worker in the past, if new, valid information is provided, it is not required the employee be laid off.
“In cases where an employee has worked without employment authorization or with a false identity or fraudulent employment document(s), and the employee has subsequently presented acceptable documentation(s) and is currently employment-authorized, the employment eligibility verification provisions do not require termination of employment,” it reads.
Companies are also advised against using the Social Security Number Verification Service while conducting an audit.
While numerous restrictions are being put on employers when it comes to justifying an audit, if a company has “fairly inferred” information that they may be unlawfully employing someone and don’t take action, they could also possibly face legal ramifications.
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