Why Should You Do An I-9 Audit?
Friday, April 18, 2008
Contributed by: Charles A. Mallard
Many employers fail to understand the potential significance of an I-9 Audit by the government. In 1994, Disneyland was fined $394,840 for 1,156 alleged paperwork violations on their I-9's. Ok, but that won't happen to me, you say. That may not be true. In 1993, a "small to medium sized business" was fined $10,500 on the basis of 42 paperwork violations on their I-9's (U.S. v. Business Teleconsulants, Ltd., 3 OCAHO 565 (1993)). In 1998 a small store owner was fined $1,160 for five paperwork violations. (U.S. v. Morgan's Mexican & Lebanese Food, Inc., 8 OCAHO 1013 (1998).
When was the last time you looked at your I-9's? Has the person you entrusted to get this form completed, been trained on how to do it properly? Are they keeping up with updating records? Are you compliant with the government's record retention rules? Are you using the new I-9 form that was put into circulation for mandatory use on November 7, 2007? If you answered "no" or "unsure" to any of those questions, then you should have an internal I-9 audit conducted.
Section 274A(e) of the Immigration and Nationality Act provides for civil fines ranging from $110 to $1,100 for employers who commit paperwork violations in connection with the completion or failure to complete an employee's I-9 properly. Common failures and errors include the failure to complete the form in the time allowed, failure to document the correct List A, B and C documents, over-documentation of List A, B and C documents, failure to sign by the employee, failure to sign by the employer, failure to date, failure to properly identify addresses, and retention failures. The fact that the employee turns out to be a U.S. Citizen does not change the fact that a sanction can be issued.
So, why should you be concerned with this now? First, it's the law. Second, just pick up a newspaper and look at the stories about immigration and the ever expanding enforcement efforts. Just this week, on April 16, 2008, ICE raided five Pilgrim's Pride facilities nationwide. The government has just issued a new I-9 form. The no-match rules are getting ready to be republished, and immigration reform is becoming a critical wedge issue for the Presidential election. If there was ever a time to conduct an internal I-9 audit, now is the time.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
