I-9 nightmare

Editor’s note: This is the first in a series of stories on the most serious HR mistakes landscape contractors make. In the coming months, Lawn & Landscape will cover: discrimination, the Fair Labor Standards Act, OSHA violations, time sheets, workers’ compensation, wrongful termination, employee handbooks, retaliation and employee leave programs.

While human resources issues (e.g., selection, training, OSHA) are frequent concerns for all companies, compliance with immigration laws is a top priority for many, especially those in the landscape industry. Failure to meet government standards related to immigration laws can have extremely serious and increasingly costly consequences.

Much of this concern is based on the Immigration Reform and Control Act (1986), which requires all U.S. employers to verify the employment eligibility and identity of all employees hired after Nov. 6, 1986. The law also requires employers not discriminate against individuals on the basis of national origin or citizenship, or to require more or different documents from a particular individual. A vital component of this frequently-misunderstood and poorly-applied process is the Employment Eligibility Verification Form, more commonly known as the I-9 Form.

This article presents the requirements of the I-9 Form, outlines possible consequences of non-compliance, and shares industry-wide questions and best practices aimed at improving landscapers’ understanding while minimizing financial cost to their organizations.

Employer Requirements:
To maintain legal compliance, all employers must:

• Periodically review the documents submitted for Section 2 to ensure their expiration dates have not been exceeded, and if they have expired, complete Section 3 of the I-9 Form immediately.
• Retain the I-9 Form for three years after the date the person begins work or one year after the person's employment is terminated, whichever is later.

Potential Employer Penalties
The I-9 Form is relatively easy to administer, but many employers do not complete it properly or on time. Failure to comply can have serious and costly impact on the employer.

If an employer makes a mistake on any I-9 Form, does not retain the I-9 Forms for the proper length of time, or does not allow the government to review the I-9 Forms when requested, the employer must pay a fine between $110 and $1,100 for each I-9 Form violation.

If the Department of Homeland Security determines that an employer has “knowingly” hired or continues to employ unauthorized aliens, the employer could pay civil penalties between $375 and $16,000 for each unauthorized alien. If an investigation reveals that an employer has falsified documents associated with the I-9 Form, the employer can be ordered to pay up to $6,500 for each fraudulent document.

Best in Class Practices
In an effort to improve the efficiency and reduce the company’s financial risk in managing the I-9 process, here are some best in class practices used by top landscapers.

• Train all appropriate staff on how to complete an I-9 Form.
• Make sure the company has a formal written policy declaring its compliance with all immigration laws and I-9 Form procedures.
• I-9 Forms must not be stored in the employee’s personnel file, but kept in a separate file. It is best to have all current employees’ I-9 Forms kept in a binder and a separate binder for all inactive employees’ I-9 Forms. Both binders should be alphabetized by employee last name. This two-binder solution enables the company to track each group by its unique retention criteria.

Click here for answers to frequently asked I-9 questions.

The author is an industrial psychologist with the Harvest Group, a landscape consulting firm. Send your questions to cesare@gie.net.