Citations for ILW.COM's Seminar
Employer Compliance For Experts
Session 1 held on January 28, 2010
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From Patrick Shen
Hypothetical exercise: Fact Pattern
Nick Carraway, who grew up in the Midwest and just graduated from Yale Law School, accepted a job offer from a great law firm on Long Island, New York, Gatsby and Gatsby, PC, which has an immigration practice. Nick’s first assignment is to conduct an internal I-9 audit at a local golf course, the East Egg Country Club, which has 14 employees. Tom Buchanan and his wife Daisy, who run the business, are law abiding citizens who insist on strict compliance with the law. In fact, they are proud of the fact that they always go the extra mile to do the right thing.
ICE Memo detailing factors in determining civil fines for I-9 violations, Form 1-9 Inspection Overview
Handbook for Employers: Instructions for Completing Form I-9 (Employment Eligibility Verification Form) (latest Handbook, as of January 28, 2010).
Jordan Baker, a former collegiate golfer, applied for the position of club pro/instructor. Given her great interpersonal and golf skills, Daisy wanted to hire her immediately. Tom, however, being the “stickler,” felt it was necessary to ask Jordan some questions. He asked explicitly whether Jordan was a US citizen because he wanted to keep American jobs for American workers. When Jordan said yes, and since Tom was already familiar with Jordan from reading about her in the local paper, Tom was confident that Jordan was a US citizen and decided to give her the job. Being a stickler, within a week of her first day on the job, Tom made sure that his chief groundskeeper, Wilson, completed an I-9 for Jordan. Jordan had lost her recently issued New York driver’s license, but was able to present an equally reliable identification, her student ID, and her Social Security card.
While Tom was very careful about hiring only American citizens, Wilson wasn’t as strict. Wilson did make sure that anyone who spoke with a foreign accent be required to present a green card. Wilson didn’t always complete all the fields on the I-9 form, but he made sure that each employee at least had a form with his or her name on it, and Wilson always attached copies of the documents presented.
The result of the audit was that 13 out of the 14 employees had I-9s on file. All 13 have copies of the documents attached, but seven (included Jordan’s) were completed outside the 3-day period after the employees began work. Also, two of the late I-9s also were missing the employer’s signature in section two.
Rather than fixing these I-9s, Tom suggested to Nick that he simply wanted to do all new I-9s for all 14 employees. After all, with his close scrutiny, Tom was confident that there were no unauthorized workers on his staff. Nick personally oversaw the completion of the I-9s, and each of the 14 workers had a new I-9 on file. Tom sent Nick an email a week later thanking Nick for a job well done and advised that all of the original I-9s have been shredded to make room for the new ones.
Just when Nick thought his work was done, he got an anonymous tip that Myrtle, a cashier at the pro shop, is not authorized to work but is assuming someone else’s identity. Nick reviewed Myrtle’s personnel file and found a letter dated more than a year ago from the Internal Revenue Service advising that the Social Security Number that Myrtle provided actually did not match Myrtle’s name. Nick informed Tom, who angrily called Myrtle into his office and told her to clear up the mismatch in three days or she’s fired.
Clarification: The problem with Jordan's school ID in our hypothetical was that it most likely was expired. The beginning of the second paragraph where the hypothetical states that Jordan is a "former collegiate golfer" was meant to spark the question of whether the ID was still valid. Under the new regulation, if the ID is expired, then it is no longer a List B document. However, student IDs are a valid List B document.
From Jennifer Sultan
Office of Special Counsel for Immigration-Related Unfair Employment Practices
Employer hotline: 1-800-255-8155
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