The ability to attract, hire, and retain the best staff is an essential component of any successful business model. This is particularly true for small businesses who must rely on a limited number of employees, and thus, often can’t afford to make poor hiring decisions that could cost the company time, money, and manpower. Sloppy hiring practices, particularly those that could be construed as discriminatory, are a primary concern. Employers who violate the provisions laid forth by the Immigration Reform and Control Act of 1986 may be subject to civil penalties, back pay awards, hiring orders, the imposition of injunctive relief to end discriminatory practices, and attorney fee awards.
Following are seven best practices to help any business navigate immigration compliance in their hiring process and avoid costly penalties.
1. Hire a PEO to help ensure compliance.
For business owners who don’t wish to deal with the labor-intensive and time-consuming process of rigorously filling out, verifying, and documenting their hiring practices, there is a cost-effective solution: Professional Employer Organizations (PEOs). PEOs are third-party providers that specialize in providing compliance services (i.e. the tedious paperwork) to companies that don’t have the desire or capacity to do it themselves. For small to medium-sized establishments, this is a great solution to the problem of increasing regulatory complexity and costs.
2. Adopt a written immigration compliance policy.
Companies should create and disseminate a written statement that clearly outlines the company’s policies and complies with federal law. A uniform policy will not only serve as a guide for dealing with any issues that crop up in the future, but it will also demonstrate a good-faith attempt to comply with all relevant immigration laws.
3. Train your management and staff on the importance of sticking to the policy.
Of course, a good plan is useless if the staff, particularly those in charge of hiring, are not aware of it. Educating your employees about the company's immigration policies is critical.
4. Avoid "citizen only" or "permanent resident only" hiring demands.
Hiring policies that specify “citizen only” or “permanent resident only” are all too common, and leave the companies who employ this language open to litigation. It is illegal to require job applicants to have a specific immigration status.
5. Check for discrepancies between an employee's name and Social Security number.
Keep a keen eye out for differences between an employee's name and Social Security number. Timing is critical in avoiding the charge that your company has ignored information that indicates an employee is working illegally. First, check your records to rule out simple typos. Next, verify your files with the employee as soon as possible. If they are incorrect, inform the Social Security Administration (SSA) immediately and have the record corrected. If your files are correct, have the employee resolve the matter with the SSA within 90 days. If the employee cannot resolve the issue, you must terminate him. Remember to document everything every step of the way to reduce legal exposure.
6. Develop a consistent evaluation process when hiring (or firing).
Make sure your hiring (and firing) process is the same for every applicant or employee to avoid charges of discrimination. Although you may have already decided who to hire or fire, following an established procedure will show that the decision was not discriminatory.
7. Follow the proper Form I-9 procedures.
Form I-9 helps employers to verify individuals who are authorized to work in the United States. Accordingly, employers should ensure that they have an I-9 compliance policy in place and that they are regularly conducting self-audits of their I-9s. An employer handbook provided by the United States Citizenship and Immigration Services (USCIS) can be found on their website.