Each hire represents a potential liability for you if I-9 requirements are not followed. So, increasing the length of time an employee remains on your team reduces the number of I-9 forms and limits your legal exposure.
By Ryan Miltner, attorney
As the owner of a small law firm, I have heard the advice, “Be slow to hire and quick to fire,” on several occasions.
The wisdom behind the first part of this advice is that hiring decisions should be made deliberately, especially in the context of a smaller business where interpersonal dynamics are so critical to the organization’s overall success.
The second part of this axiom stems from the belief that once it becomes apparent that an employee, especially a new employee, is not working out, the relationship should be ended quickly and professionally, rather than risk ongoing damage to the morale of other employees from a hiring mistake.
In practice, farmers do not often have the luxury of passing on a job candidate while awaiting the next applicant. So, hiring decisions often are made quickly. But, on the other hand, turnover in agricultural employment is comparatively high. So, the process of hiring for open positions is a frequent occurrence.
I want to focus on the “slow to hire” portion of this advice, and in particular focus on an overlooked benefit to having workers remain in your employ for as long as possible, thereby cutting down on the turnover of employees.
By now, producers should understand the importance of completing an I-9 form for all hired employees. Proper adherence to the I-9 requirements generally insulates an employer from liability for hiring a worker who later is determined to be unauthorized, unless, of course, the employer has other reasons to know that the employee is not authorized to work in the U.S.
For agricultural employers in general, and dairy farmers in particular, the percentage of employees that are actually undocumented is significant. Accordingly, each potential hire represents a potential liability for the employer if the I-9 requirements are not followed. This includes both the failure to obtain any I-9 verification or improperly completing an I-9 form. Penalties for I-9 violations can reach up to $1,100 per employee.
Let’s assume for illustrative purposes that your farm employees 15 workers at any given point. Let’s further assume that the average worker stays in employment for a period of six months. In any given year, your dairy should be completing 30 I-9 forms. An ICE audit of one year of employment records presents 30 different points where an error might occur, thereby subjecting your farm to fines for each error point. Granted, this turnover rate might be high for many operations, but there are plenty of farms that experience a turnover rate at this level.
Sources abound for producers on identifying both the causes of turnover as well as the obvious and not-so-obvious costs of high turnover. This “Labor Matters” blog has included some excellent posts on employee management. By identifying the root causes for employee turnover, the overall I-9 burden and consequent exposure to your dairy can be limited.
In the hypothetical example of the dairy above, extending the average time of employment to eight months would translate to a reduction in the number of I-9 forms by seven. That amounts to nearly $8,000 of potential liability per year for your operation.
Of course, the best course of action is to have both your I-9 procedures and your I-9 records reviewed to ensure compliance to the maximum extent possible. But in addition to the general benefits of long-term employees working on your farm, there is some additional benefit to be gained in terms of your legal exposure by increasing the length of time an employee remains on your team.
Ryan Miltner is an agricultural and estate planning lawyer in private practice. His agricultural practice is focused on dairy policy and the economic regulation of the dairy industry. The opinions in this article are his own observations prepared for Dairy Today and do not necessarily reflect the opinions of any of his clients. Contact him at firstname.lastname@example.org.