When ICE comes knocking, it may be snowing fines for lack of Form I9 compliance in Florida

August 15, 2010 at 7:47 pm | Posted in Employee, Employer, Employment Law, I9, Immigration | 1 Comment
Tags: audit, compliance, fines, I9, immigration, McCollum

Immigration is a hot topic – again.  Arizona’s stringent new immigration law was challenged by the Obama administration, suggesting, among other arguments, pre-emption of federal immigration laws.  Judge Susan Bolton of the Federal District Court in Phoenix issued a preliminary injunction against some of the more controversial sections of Arizona’s law.  Under Judge Bolton’s ruling Arizona state police cannot make it a state crime to fail to carry immigration documents.  Judge Bolton further held that Arizona state police officers who have not been trained under Section 287(g) of the Immigration and Nationality Act may not check a person’s immigration status while enforcing other laws.

Florida gubernatorial candidate Bill McCollum and House Representative William Snyder from Stuart recently filed their own proposed Florida immigration reform bill, suggesting that “Arizona is going to want this law,” McCollum said. “We’re better, we’re stronger, we’re tougher and we’re fairer.”  For a copy of the actual bill text, see the link at the bottom of this posting.  Protests and commentary abound about this controversial proposal.

With the focus on illegal immigration spurring the federal government to take action, Immigration Control and Enforcement, known as ICE, has stepped up their auditing of employers.  Form I-9 audits are becoming quite common, and resulting in heavy fines being assessed against employers.  In the “good old days” the Department of Labor conducted the Form I-9 audits in conjunction with payroll audits.  Most Form I-9 audits took a few hours and ended with promises of better compliance in the future.  Now, ICE arrives with a subpoena asking for information that will keep your entire HR staff hopping for days to compile the information.  Some of the items ICE is commonly requesting includes:

• Original I-9 forms and copies of supporting documents
• Employee roster or payroll
• Monthly payroll reports
• Copies of State Wage Detail Reports and Unemployment Insurance Quarterly Tax Reports
• Copies of Quarterly Tax Statements
• Independent Contractor Rosters including dates of hire and termination
• Copies of Tax Form 1099 for all independent contractors
• Lists of all individuals employed on a sporadic, irregular or intermittent basis and not deemed to be an employee
• Copies of Social Security Administration Employer Correction Requests
• Copies of petitions filed with the Immigration Service on behalf of employees
• Copies of the business’s articles of incorporation, business license and annual reports
• Employer Identification Number (EIC) and Taxpayer Identification Number (TIN) documentation, and
• Copies of all company procedures and/or policies regarding Form I-9 preparation

The list above is not complete; employers are being presented with subpoenas of five to seven pages.  Employers are also being asked to provide information about the employer’s use of temporary staffing agencies, including requesting all contracts between the employer and the vendor and a copy of ALL applications filed out by the vendor’s employees who have been assigned to the employer’s workplace.  If the employer participates in E-Verify, all documents regarding initial application, compliance and training will also be requested.  If the employer has had prior Form I-9 inspections by the Department of Labor, all DOL audit information will also be require to be provided.  Here’s the kicker, employers typically have less than a week to gather, prepare and present all of these items.  Be sure to train your front line employees to notify you immediately of ICE being on premises.  It is likely that you will need counsel to assist you in the audit process as significant fines and multipliers can result from these audits.

This topic will continue to gain publicity as election season continues and the Arizona law continues to evolve.  In the interim, Florida’s hospitality and farming industries can expect to see ICE come knocking.  Be sure to have policies and procedures in place for that possibility – and your attorney’s number handy!

For the actual bill text, visit: http://floridaindependent.com/5814/mccollum-state-rep-william-snyder-announce-details-of-arizona-style-immigration-law-they-want-in-florida

A reader’s review of the above information does not establish an attorney client relationship between the reader and the Sensenig Law Firm, P.A. The above information is not legal advice and should not be relied upon as such.