FOR MORE ON I-9s:
verification process contains numerous traps for even
the most conscientious employer. The re-verification
rules are tricky and counterintuitive. It may help to
think of the anti-discrimination provisions as controlling the "how" of the Form I-9 process; whereas
ensuring the employee is authorized to work is the
"what" of the process. Employers must walk a fine line
between ensuring employee work authorization while
avoiding discrimination against any employee based
on his or her immigration status or national origin.
For example, an employer might mistakenly believe
lawful permanent residents must be re-verified because their work authorization document (typically
a green card) includes an expiration date. However,
for most lawful permanent residents, re-verification
is not permitted. Similarly, employees with temporary
protected status (TPS) may have initially presented an
employment authorization card with an expiration
date, yet often times, TPS status is extended automatically via publication in the Federal Register, even
though the employee does not receive an updated employment authorization card.
In addition to re-verifying employees whom the
employer is not permitted to re-verify, Macy's may
have violated the anti-discrimination provisions by
the manner in which it performed the re-verification
itself. For example, an overzealous employer may require that all employees with temporary work authorization present an employment authorization card
as their form of identification and proof of work authorization for Form I-9 purposes. To the untrained
human resources associate, this process may seem
innocuous. Not so fast! Requiring certain employees
to present particular documents during the Form I-9
process may violate the Immigration and Nationality
Act's anti-discrimination provisions.
Unfortunately, many electronic I-9 systems don't
understand the "how" of the Form I-9 process. A
I-9 Seminar Series Recordings Combo
Late Breaking Seminar: The New Form I-9
and How It Affects You (Recording)
Dotting the I's and Crossing the T's
of I-9 Compliance (AC Recording)
AILA's Guide to Worksite Enforcement
and Corporate Compliance Handbook
number of sophisticated employers have patted
themselves on the back for implementing the "best"
electronic I-9 system, only to find that their system is
woefully inadequate in meeting the complex requirements of the Form I-9 process. The Macy's settlement
agreement indicates that its electronic system may fall
into this category.
There is no substitute for a well-designed process,
comprehensive training, and an internal audit system
designed to catch and appropriately remediate errors
before they become the subject of a government investigation.
Christine D. Mehfoud is a director at Spotts Fain PC
in Richmond. The author's views do not necessarily
represent the views of AILA nor do they constitute legal
advice or representation.
N OVEMBER/ DO CTOBER 2013
S EPTEMBER/ ECEMBER