Compliance with immigration laws is getting increasing media and enforcement attention, putting more pressure on employers. And don’t forget the Supreme Court’s recent decision upholding “Arizona’s ‘business death penalty’ for employers who repeatedly hire undocumented workers.” As a result, employers need to be proactive and make affirmative strategic decisions on immigration issues in hiring.
Employers and their counsel should review these 13 best practices and use them to determine what works best for the company:
- Be truthful and accurate in all communications with immigration authorities.
- Establish a written hiring and employment eligibility verification policy and encourage due diligence at all levels of the organization.
- Establish an internal compliance and training program related to the hiring and employment verification process, including completion of Form I-9, proper review of documents, retention procedures, and preparation for audits or raids.
- Establish and maintain appropriate policies, practices, and safeguards against use of the verification process for unlawful discrimination and to ensure that authorized workers don’t face discrimination because of citizenship status or national origin.
- If the company participates in E-Verify, IMAGE, or SSNVS, establish proper protocols that participation is solely for the purpose allowed and in compliance with appropriate safeguards for confidentiality and privacy concerns.
- If the company plans to do something that is optional, e.g., an electronic Form I-9 system, E-Verify, do it right or don’t do it at all.
- Use a tip line mechanism (e.g., a toll-free number or an e-mail box) for employees to report activity relating to the employment of unauthorized workers or discrimination and establish a protocol for promptly and appropriately responding to employee tips.
- Implement a protocol for promptly and appropriately responding to letters or other information indicating that there is a discrepancy with Form I-9 information.
- Never refer to someone as an “illegal alien” or make assumptions.
- Stress the importance of workforce compliance and related nondiscrimination laws to contractors and subcontractors, and review independent contractor agreements for temporary labor on company property to make sure they comply with applicable immigration laws and have corresponding indemnification and attorney fees provisions.
- If the company has sponsored or will sponsor employees, designate an individual or team to maintain compliance with the applicable requirements for these individuals.
- If applicable, establish a global immigration plan for the company for the transfer of employees to and from abroad.
- Review in advance the immigration consequences, if any, of corporate changes ranging from mergers and acquisitions to corporate name changes.
Every company should establish periodic times to review and evaluate its compliance practices so that it can identify and implement policies and procedures that work best as the company changes and grows.
For much more detail on these 13 best practices, including practice tips and sample forms, turn to CEB’s Drafting Employment Documents for California Employers, chap 2. Also check out information on employer requirements under IRCA in CEB’s Advising California Employers and Employees, chap 4.
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