The Immigration and Reform Control Act (IRCA) requires all employers to complete a Form I-9 for all employees hired after November 6, 1986. The law prohibits an employer from knowingly hiring or continuing to employ an unauthorized alien. The severity of the consequences awaiting employers who violate this law was evident recently in two cases in Nebraska federal court. U.S. v. Younes and U.S. v. Kearney Hospitality Inc.
A hotel operator, Paul Younes, has pled guilty to charges that he knowingly hired and continued to employ an individual who was not authorized to work in the U.S. The employee was a housekeeping supervisor who quit one of the hotels owned by Mr. Younes to avoid a social security investigation. The government claimed she began working for a second, related hotel under another false identity with the assistance of Younes. Younes reclassified the housekeeper as an “independent contractor” for payroll purposes (skirting the need for Form I-9), though she was the only person in the housekeeping department who worked under that status.
Younes and his company were each charged with and pled guilty to violating the prohibition on knowingly hiring or continuing to employ an unauthorized alien. Younes now faces up to six months in prison and a $3,000 fine; the company is looking at five years’ probation and a potential fine of $500,000.
A “knowingly hiring” violation can be based on an employer’s actual or constructive knowledge. Therefore, if an employer has knowledge of facts that would lead a person exercising reasonable care to know about the employee’s unauthorized status, it may be said to possess the constructive knowledge needed to support a violation. While any number of known facts could establish constructive knowledge, the most fundamental (and the first listed in the regulations) is when an employer fails to properly complete an Employment Eligibility Verification Form, I-9. Simply, employers invite trouble by ignoring their obligation to complete I-9s. With the government clamping down on misclassification of employees as independent contractors, employers cannot avoid the I-9 verification requirement without risking wage and hour, IRS and civil and criminal immigration consequences. At the end of the day, one little two-page form has a lot of power.