This can be a fairly tricky issue for small business owners – you don’t want to violate laws on either side of the issue. On the one hand, it’s illegal to knowingly hire a worker who isn’t authorized to work in the US, but it’s also against the Immigration Reform and Control Act to ask for proof of citizenship at any time prior to offering employment.
This leaves employers with questions about whether or not they can ask about Work Visas and how they should go about doing that. To help you better understand how to navigate this somewhat tricky area of employer-employee relationships, here are few basic facts and tips:
When You Should Ask
While you are required to verify a workers eligibility is only something you can do after you’ve actually hired a candidate. However, you are legally required to do so. This leads to questions from employers about how to avoid wasting time hiring someone that is not actually eligible to work in the US.
The best way to handle this is to make known your intention to request proof of eligibility to work in the US before you hire the employee. While you can’t ask for it yet, you can tell them that upon acceptance of the offer you will then require said proof. To this end, the EEOC recommend adding the following to you employment applications:
“In compliance with federal law, all persons hired will be required to verify identity and eligibility to work in the United States and to complete the required employment eligibility verification document form upon hire.”
Once an employee is officially hired, you can then ask for verification.
How You Should Ask
The most common way to ask an employee to verify their eligibility to work in the US is to have them fill out an IRS Form I-9. This should be by the first day they will be paid for working at the very latest. An I-9 has a section for the employee to fill out and two more for the employer. The employer section must be filled out by the third paid day of work for the employee.
Employees must also present the required additional documents to prove their identity. There are three lists of documents that can be combined to satisfy this. More information is available from the IRS or by speaking with a qualified and experienced small business attorney.
What You Should Be Careful About Saying
The core of what employers need to be careful about is avoiding discrimination against a candidate based upon citizenship. This is something you can be sued for even if it was done unintentionally. Therefore, it becomes important to ensure you aren’t accidentally providing grounds upon which a case can be built against you. To protect yourself and your business:
· Never ask for any proof of anything that isn’t expressly needed to satisfy an I-9 Form.
· You cannot choose which documents from the three lists an employee provides you with, nor should you express dissatisfaction or preference of documents.
· You may not fire an employee because their Visa will expire at a future date that is sooner than you would like.
· You may not retaliate against any employee who decides to file discrimination charges – whether they are still working for you or not.
· You should cooperate with any EEOC or DOJ investigations concerning such allegations.
Remember, failing to do so puts you at risk of not only a discrimination lawsuit, but also fees, back wages, and other penalties the Federal Government may also impose.
Still have questions?
Please call us for a free appointment with Miami business attorney Yoel Molina in our Miami office at 305-548-5020.