Counsel to Counsel - September 2008 - (Page 17) and generally voluntary, although on June 9, 2008, President Bush signed an executive order that requires federal contractors to participate in the program. Some states also legislate the use of E-Verify (see What the States Are Doing). If the new employee’s name and Social Security number are inconsistent, employers receive a “no-match” letter and are required to clear up the discrepancy, whether that discrepancy is based on an actual misappropriated number, a clerical error or a problem at the Social Security Administration. Employers generally have 90 days to respond to a no-match letter. There are advantages and disadvantages to participating in E-Verify, according to Lindsay L. Chichester, an associate with Dinsmore Ensuring Best Practices While the human resources department usually completes I-9 forms, the legal department must be closely involved with the process, according to Adams and Chichester. The legal department should train HR on how to fill out the forms and recognize which documents appear authentic. “From a layperson’s perspective, you have to know what to look for in terms of what is fraudulent and what is legitimate,” says Adams. Regular, ongoing training also allows inhouse counsel to gauge whether HR staff may be under pressure from businesspeople to hire new employees with documents that may not pass the sniff test. “There need to be In-house counsel should also conduct regular audits of the company’s I-9 forms, in anticipation that ICE may someday request copies. Adams suggests conducting a random-sample audit that includes close scrutiny of the documentation that employees have submitted and the company has accepted. And if the employer receives an audit notice from ICE asking for the employer to turn over the company’s I-9s, the legal department needs to be informed immediately and encourage complete cooperation. “Show them everything that you’ve got, even if it has warts on it,” says Chichester. In-house counsel need to keep in mind that ICE officials may monitor telephone calls or have employees and potential employees wear wires to record conversations. “ICE is an enforcement authority,” says Adams. “They probably work for a year or two to build a case against a company.” What the States Are Doing Illegal immigration has become a hot potato issue, and in the absence of reform at the federal level, many states are enacting immigration legislation. States are taking radically different approaches, though. For example, starting this past Jan. 1, the Arizona Fair and Legal Employment Act (aka the “Legal Arizona Workers Act”) took effect, which requires every employer in that state to participate in the federal government’s E-Verify program. However, in Illinois, the state legislature passed a law that would prohibit Illinois employers from participating in E-Verify. In September 2007, the U.S. Department of Homeland Security sued Illinois over the legislation, which is part of the Illinois Right to Privacy in the Workplace Act. Illinois has agreed not to enforce the law until the suit is settled. In-house counsel need to stay up to date on the laws in their states in order to navigate this “politically charged” topic, in the words of Gregory P. Adams, a partner at Dinsmore & Shohl LLP. However, Adams does not expect that Congress will tackle the issue anytime soon, regardless of the outcome of the upcoming presidential elections. That will continue to complicate life for employers that struggle to fill their ranks with eligible employees. “Federal laws have to be reformed,” says Adams. “It’s as simple and as complicated as that.” Dinsmore & Shohl LLP was founded 100 years ago and has grown to more than 375 attorneys in four states and nine locations. The firm’s clients include Fortune 100 and 500 companies, institutions and individuals in a wide range of industries and business sectors. They range from public and private corporations to charitable organizations and encompass healthcare providers, local and state governments, financial institutions, real estate developers, franchisors and distributors, and pharmaceutical companies. Article Participants: Gregory P. Adams Partner gregory.adams@dinslaw.com Peer Review Rated Lindsay L. Chichester Associate lindsay.chichester@dinslaw.com & Shohl. “Employers can go to bed at night knowing they won’t get a Social Security Administration no-match letter,” she says. “But those who would benefit the most from using the E-Verify system could also have the biggest headaches. These are companies that have the largest numbers of employees, who could also get the biggest number of nonconfirmations using the E-Verify online system, which require additional steps for the employer and employee.” refresher courses regularly throughout the year,” he says. “Those who have gone off the reservation need to be brought back on to the reservation.” Limiting the number of HR staff authorized to fill out I-9 forms is also important, according to Chichester. It is easier to train smaller groups, and those people become more experienced with the process and are better able to recognize documents that may be inauthentic or stolen. www.martindale.com/c2c SEptEmbEr 2008 17 http://www.martindale.com/c2c
For optimal viewing of this digital publication, please enable JavaScript and then refresh the page. If you would like to try to load the digital publication without using Flash Player detection, please click here.