Employers who want to avoid liability, investigation, or lawsuit may want to consider using E-verify

All Utah employers should be aware of a significant employment verification change in the law.  The passage of Senate Bill 81 and 93 (Illegal Immigration & Immigration Amendments) effective July 1, 2009, encourages all Utah employers to use the Department of Homeland Security’s E-verify system to confirm  the match of names against the social security numbers of newly hired employees. 

There are three major provisions of this law that apply to private employers:

1. No restaurant or private club will be granted a liquor license to a person who is not lawfully present in the United States.
2. A public employer (department, agency, instrumentality, or political subdivision of the state) may not enter into a contract for the physical performance of services within the state with a contractor (defined as an entity who was awarded the job by means of Request for Proposal – RFP) unless the contractor registers and participates in the Status Verification System (E-verify) for all newly hired employees.  In addition, these contractors who hire subcontracted labor must have the subcontractor sign an affidavit saying that the subcontractor will use the verification system.
3. ALL UTAH EMPLOYERS:  It is unlawful to hire an illegal alien to replace a legal worker and their duties.  If an employing entity knows, or should have known that the worker is illegal, and the employing entity is NOT using the E-verify system, then the employing entity is not exempt from liability, investigation or lawsuit.

Also, the law requires all public employers to use the E-verify system.

Many employers will be tempted to use the Social Security Administration’s verification system called SSNVS.  The new Utah law allows for the use of this system.  However, if you are using this system for a reason other than the W-2 process, or to check a SS# no match from either the Social Security Administration or the Dept. of Homeland Security, you are using the system incorrectly.  Improper use of the SSNVS system in conjunction with the new Utah law violates the federal law and exposes the employer to liability.

In addition to the Utah law, federal contractors will be required to use the E-verify system effective June 30, 2009. 

I-9 employment verification process

Many employers open themselves up to fines, litigation, and criminal arrests for failing to do the I-9 process correctly.  The seven most common mistakes employers make are:

1. Requiring employees to provide their drivers license and social security card
2. Requiring two forms of I.D.
3. Accepting more documentation then is legally required to prove eligibility
4. Not completing the I-9 properly and/or timely
5. Not administering the photo copying of document(s) rule properly
6. Failing to re-verify the I-9 when required
7. Retaining the I-9 for a longer period then required by law

These mistakes can be very costly to employers.  The Department of Homeland Security has audited numerous employers (including Utah companies) and required them to pay tens and even hundreds of thousands of dollars for minor clerical errors.  In addition, employers could face criminal charges, up to and including jail time, associated with hiring illegal workers. 

No Match Letters – Safe Harbor Rule

The Department of Homeland Security (DHS) recently published their new Safe Harbor rule relating to Social Security Administration/DHS no-match letters. If the employer receives a no-match letter from either of these government agencies and fails to follow the Safe Harbor provisions, the employer is subjecting him/herself to employer sanctions and arrest for knowingly hiring illegal workers.  An example of this is a manufacturing company with employees in Utah who had nine of their supervisors arrested after received repeated no-match letters. 

The new director of the DHS, Janet Napolitano, has publicly stated that the DHS will focus less on worksite enforcement (raids that round up illegal workers) and more on employer enforcement of the law.  It is anticipated that employers will have more audits of the I-9 process.  If employers receive a no-match notification and do not follow the new Safe Harbor provisions, the DHS will consider this “constructive knowledge.”

The bottom line is that employers must protect themselves and their business/personal assets by following all of the new immigration employment verification laws.

This article was written by Mark Hunter of Summit Risk Management.  This is presented as information only, and is not intended to provide legal advice.  Summit Risk Management helps employers to avoid government fines, lawsuits, and workplace accidents.  Summit Risk also provides benefits, insurance, and bonding programs to help employers cover insurable risks.  For more information on when Summit Risk will be conducting seminars on this and other topics, contact them at 801-438-1300.  You can also contact them for a no cost compliance guide to employment verification.