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Requiring Employees to Provide Proof of Eligibility to Work in the U.S. May Result in a Liability

Employers in Florida have three days from the date of hire to verify a new employee's eligibility to legally work in the United States. This verification process falls under rules and guidelines that are provided by the United States immigration and citizenship laws as outlined in the Immigration and Nationality Act (INA).

For all employees hired after Nov. 6, 1986, employers must examine applicable documents, complete the Employment Eligibility Verification Form (I-9), and retain it for their records. The U.S. Immigration and Customs Enforcement (ICE) agency keeps employers in check by routinely performing examination audits. Failure to comply with employee verification rules can lead to civil fines and criminal penalties.

Employers must proceed with caution while going through the verification process in order to avoid violation of anti-discrimination laws. Discrimination rules are covered by the Immigrant and Employee Right Section (IER), formerly known as the Office of Special Counsel for Immigration Related Unfair Employment Practices, which falls under the jurisdiction of the U.S. Department of Justice. In the purest form, the rules require that employees must not be discriminated against based on their citizenship, immigration status, country of origin, or ethnicity. Rule violations typically fall into one of four main categories:

* Unfair documentary practices

* Citizenship status discrimination

* National origin discrimination

* Retaliation issues

As an employer, you can reduce liability and keep yourself out of trouble by following a few simple guidelines.

Know When to Request Documents

Verification documents may not be requested during the interview process, even if you suspect that the candidate may not be eligible for employment. It is only acceptable to request documentation after the candidate has been hired and you are completing the I-9 verification form.

Adhere to the Approved Document List

Employees may provide any of the approved documents that are listed on the I-9 form. Employers may not specify which of the documents will be accepted or request items that are not on the list. Permanent residents may not be required to provide a copy of their Permanent Resident Card (Green Card), and U.S. Citizens cannot be required to produce a birth certificate based on the perception that they appear to be foreign.

Understand Acceptance Rules

Rejection of documentation based on the employee's citizenship or nationality falls under anti-discrimination rules. Employers must not reject documents that reasonably appear to relate to the individual in question and seem genuine. Documents also may not be rejected based on the fact that they have a future expiration date.

Treat Employees Equally

Changes to your verification procedures must apply to all employees equally. Requesting additional documentation for certain employees based on their appearance or perceived nationality is considered discriminatory. Employees may not be subjected to additional screening based on a suspicion that he or she is ineligible for employment.

Abstain from Discriminatory Practices

An employee's citizenship status, place of birth, country of origin, ethnicity, native language, accent, or appearance must have no impact on your recruiting and hiring process or decisions related pay levels, job duties, benefits, promotions, or termination. U.S. citizenship may not be a requirement for employment unless such citizenship is legally necessary to perform the duties of the job.

Do Not Retaliate

If an employee has exercised his or her rights under anti-discrimination laws, filed a complaint, or participated in an investigation, employers must tread lightly to ensure that there are no real or perceived incidents of intimidation, threats, or coercion. Changes in employment status or job duties, reduction of hours or pay, or any other type of mistreatment may fall under the umbrella of retaliation and cause additional problems for you as the employer.

Employers attempting to thoroughly conduct an analysis of an employee's eligibility may inadvertently find themselves in hot water if the rules are not closely followed. It is critical that all staff members who are involved in the hiring and verification process are familiar with the guidelines and understand the potential penalties for rule violations. Proactively putting policies and procedures in place will help employers to meet requirements while protecting themselves from additional liability issues.

For additional information on this subject or any other employment matter, visit our website at: www.danzlaw.net.

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