November 2016 held more than one shock for many in America. Not only did the presidential election cycle come to a dramatic close, but the government introduced its new Form I-9, Employment Eligibility Verification.
First introduced in 1986, the “Form I-9, Employment Eligibility Verification,” must be completed for every new employee. Over time, it has been expanded from one page to two. And its instructions have grown from less than a page, to six pages for the 2013 edition to 15 pages of Instructions – more than four for the employee section alone – for the 2016 edition in English and in Spanish.
Some employers don’t take the Form I-9 seriously, but they should. The government has significantly increased its audits of all kinds of employers – not just the bad guys - and are assessing hefty fines for mere technical violations. This is particularly true in the hospitality industry, which can be a target for audits and which, because of employee turnover, has seen disproportionately high fines.
Every employer knows that the government’s one-page form, the “Form I-9, Employment Eligibility Verification,” must be completed for every new employee. And most make sure that they get theirs completed in a timely manner. But failure to be vigilant regarding the timelines or whether the forms are completed fully or correctly can cost even the best employer thousands of dollars in fines.
Most employers consider themselves good guys. They don’t purposely seek out or hire employees who are not authorized to be employed in the U.S. But those employers are mistaken if they think that Immigration and Customs Enforcement (ICE), the enforcement arm of the Department of Homeland Security, only audits unscrupulous employers. ICE does focus on certain industries in which there is a history of unauthorized employment, but the reality is that ICE has become very good at conducting audits, and has a team of forensic auditors on staff that it wants to keep busy. ICE does that by initiating seemingly random individual audits or nationwide actions in which up to 1,000 audits are served in a single day, providing as little as three days’ notice before documents have to be surrendered. The writing is on the wall – employers should plan for and expect a government audit of its Form I-9 documentation.
Greg Duff founded and chairs Foster Garvey’s national Hospitality, Travel & Tourism group. His practice largely focuses on operations-oriented matters faced by hospitality industry members, including sales and marketing, distribution and e-commerce, procurement and technology. Greg also serves as counsel and legal advisor to many of the hospitality industry’s associations and trade groups, including AH&LA, HFTP and HSMAI.