Is your business compliant with federal employment verification for unionized businesses regulations? Employers are obligated to obtain “I-9” forms for newly hired employees to verify that the potential employee is either a U.S. citizen or an alien with the legal right to work in the United States, and Employers are required to maintain records of those forms and their compliance. The federal government is enforcing those obligations aggressively, often targeting small and mid-size businesses in construction industries which have a reputation for under-the-table hiring or poor record keeping. Employers found to be in violation are subject to heavy fines and in extreme cases, criminal penalties.
Compliance is particularly complex for small and mid-sized unionized businesses, particularly those such as the construction industry, which rely upon unions to provide them with workers. Typically, when an employer has a need for specific numbers (and classifications) of workers, they notify the union which then selects the workers for them from the “hiring hall.” In industries, such as construction, the numbers of employees needed may vary from on a biweekly basis, and the employees do not actually report to the company’s main offices.
Most small and medium size unionized, businesses do not negotiate individual labor contracts. Instead, they become members of a multi-employer association which negotiates regional contracts with unions for all their members. The United States Customs and Immigration Services recognize that “special rules” apply to such employers. Under these rules, such an employer “will be deemed to have complied with the employment eligibility verification requirements for its employee” if:
(1) the employee is a member of a collective bargaining association and employed under that CBA;
(2) another employer that is a member of the same multi-employer association (or an agent of association, on behalf of the employer) has previously fulfilled the I-9 requirements within the previous three years, or (sooner if the employee produced work authorizations due to lapse within those three years).
In addition, union, and construction businesses in general, may not have to do a new I-9 for previously hired employees, if they undertook the I-9 verification previously and the employee is being rehired for seasonal work, after a strike or lockout or had been temporarily laid off for lack of work.
Enforcement efforts may begin with a “no match” letter from the social security administration advising the firm that one or more of its employees’ W-2 form or payroll reporting data lists a social security number that does not match the administrations central records. Although there can be many mismatches, including data entry mistakes, the government regards such mistakes as a clue that someone is using another’s social security number to work unlawfully. Alternatively, enforcement may begin with a letter or subpoena from the Department of Homeland Security seeking to audit the firm’s I-9s. The receipt of either correspondence is a serious matter. Employers have to both comply with laws requiring hiring responsibilities and avoid discriminating against workers by firing or demanding certain workers (such as those whose mother tongue is not English) to provide proof of their identities. Therefore firms should consult with counsel promptly.