Double-Check Your Documents
Dec 30, 2011
Attorney Anthony Raimondo wants dairy producers to be clear about employment laws and immigrant labor.
“They need to be taken seriously,” says Raimondo. “The undocumented worker is not the only one at risk,” Raimondo says.
Speaking at Dairy Today's Elite Producer Business Conference in November, the California-based attorney shared information on U.S. Immigration and Customs Enforcement (ICE) employment policy and requirements.
According to Raimondo, employer obligations under immigration law mean:
• It is unlawful for any person or entity to hire, recruit or refer for a fee an alien for employment in the U.S. knowing that person is not authorized to work here.
• It is also against the law to continue to employ an alien while knowing that person is, or has become, unauthorized for employment.
• An employer has an affirmative defense if he or she complies in good faith with the verification process set forth in the statute, typically referred to as the I-9 process.
• “Knowledge” indicates not only actual knowledge but also “constructive knowledge.”
Constructive knowledge, Raimondo says, is awareness of certain facts or circumstances that would lead a person exercising reasonable care to know about a certain condition. Constructive knowledge that an employee is not authorized to work includes, but is not limited to circumstances where an employer:
- fails to complete the I-9 form;
- has information available to him or her that would indicate that a person is not authorized to work; or
- acts with reckless and wanton disregard for the legal consequences of allowing another individual to introduce an unauthorized alien into the employer’s work force or to act on its behalf.
• Knowledge that an employee is unauthorized may not be inferred from an employee’s appearance or accent, nor may it be inferred from mere suspicions or rumors.
Dairy employers should correctly fill out I-9 forms:
• Section 1 must be filled out by the employee before performing any work. The preparer/translator certification must be signed by anyone who assists. The employee is not required to provide his or her Social Security number.
• Section 2 (document verification) must be completed within three business days of starting work. Make sure all new hires are provided with a copy of the list of acceptable documents shown on the back of the I-9 form. The same person who sees the documents must sign the certification. Record all document information.
• Documents must be originals that “reasonably appear genuine on their face.” If so, they must be accepted. Employers cannot specify which documents to produce.
“All new hires must be given the list of acceptable documents,” Raimondo emphasizes. (See sidebar) “You cannot require an employee to provide a Social Security card.”
Raimondo also wants dairies to carefully verify the documents submitted by employees.
• Make sure the employee presents original documents. “Copies are not acceptable,” he says.
• The law does not require you to copy employee documents. “If you keep copies, you are giving ICE an opportunity to second-guess your judgment on whether the document appeared genuine, except that ICE will be looking at a copy when you were looking at an original,” says Raimondo.
Copies are often of poorer quality than originals, and may not look the same. “Whoever fills out the I-9 for the employer has to certify that the documents appeared genuine under penalty of perjury, and that is enough,” he adds.
• Employees must produce one document from List A, or one from List B and one from List C. “Make sure you know the difference between them, and the purpose for each,” advises Raimondo. List A documents prove identity AND authorization to work. List B documents prove identity only. List C documents prove work authorization, but do not show identity.
• Errors, typos, and white-out-– let your mistakes be seen. “There is no reason to make ICE suspicious about what you might have blacked out,” says Raimondo.