Responsible business executives and HR managers must take affirmative steps to ensure that their own verification procedures, as well as those of the contractors they use, are in order, and remain vigilant for any signs of non-compliance.  This will help to minimize their risk and avoid costly fines, embarrassing PR and in some cases criminal prosecution.

 One important piece of I-9 Compliance enforcement that is often overlooked is the use of outside contractors.   Independent-contractor agreements do not provide a “safe harbor” for I-9 compliance violations.

One of the most notable cases is one involving Wal-Mart.  Wal-Mart had used outside contractors to hire a portion of their work-force – a practice that many companies use.  After an extensive investigation by ICE it turned out that there were a variety of violations.  In the end 12 companies who served as employment contractors pleaded guilty to criminal violations of immigration laws and agreed to pay $4 million in fines. Wal-Mart avoided criminal charges, but received an $11 million fine resulting from the independent contractors’ illegal hiring practices and documentation errors.

Here are some tips for employers who subcontract a portion of their workforce.

Be vigilant about complying with the I-9 regulations that govern hiring their own employees and their subcontractors’ workforce, and reviewing their practices.

Obtain assurances that their company-wide policies and procedures regarding work authorization of employees, including completing, reviewing and retaining

I-9 forms are up to date and are in adherence to current regulations.

Ascertain that company managers, who oversee completion of I-9 forms, receive training regarding the obligations imposed by I-9 regulations.

Implement an independent third party audit of their I-9 files and practices to assure continued compliance.

Proactively and contractually require independent contractors to furnish them with copies of I-9s and other documentation for the workers brought on site.

Agreements with independent contractors should include provisions obligating the contractor to comply with I-9 compliance laws and regulations.  It would also be wise to require contractors to compensate the employer for any liability incurred resulting from the contractor’s violations of I-9 laws and regulations.

Ignorance about an independent contractor’s hiring practices is not an accepted excuse, and will not shield a company from civil and criminal prosecution, if the contractor employs illegal immigrants or their I-9 forms are not in order.

Legal Employer helps clients of all sizes ensure that their I-9 forms and procedures are current and in order.  Call and talk with our experts – the consultation is free and the investment of time could be priceless.  What’s In Your Files?

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