Southwest Florida Employment Law Blog : Southwest Florida Employment and Labor Lawyers & Attorneys for Discrimination Lawsuits and Civil Rights Cases in Fort Myers, Bonita Springs & Sanibel FL

I am pleased to announce the launch of Henderson Franklin's third blog, the Florida Immigration Law Blog.  Lead by Tulio Suarez, a board certified immigration attorney, with contributions from Amanda Brock and Bruce Sands, the blog will focus on all aspects of immigration law, from I-9 compliance issues to visas, ICE audits to E-Verify, and much more.  I think it will be a great resource for readers of this blog, since I know many of you deal with immigration issues on a regular basis.  Definitely check it out! 

I also wanted to mention that I have some exciting things in the works for Southwest Florida HR Law & Solutions.  I've been somewhat MIA on here the last couple of months due to an explosion of work that's been keeping me busy, but I haven't forgotten about the blog.  Over the next couple of weeks I'll be launching a new regular feature, bringing back Miss Blu, and following up on a few things that have happened recently in the employment law/HR world.  

I want to thank all of my readers for sticking with me (we recently shattered our previous hit/visit record, so I know you're there!), and invite you to share any suggestions on features you'd like to see or topics you'd like me to cover.  Please do not hesitate to send an email or give me a call with your ideas -- I'd love to hear from you!

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I am pleased to feature a post from guest blogger Amanda Brock.  Amanda is a Henderson Franklin attorney and regular contributor to the Legal Scoop on Southwest Florida Real Estate, our real estate blog.  As many of you will remember from our seminar last month, in addition to her land use and environmental law practice, Amanda is assisting our clients with immigration-related matters.  Here, Amanda offers several great pointers for I-9 retention:

Who doesn't love filling out mandatory forms from the federal government? In addition to being mandatory, the I-9 Employment Eligibility Verification forms come with a host of regulations that can easily trip up even the most experienced HR professional. Adding insult to injury, if the government audits your I-9s, you generally have only 3 days to respond.

I recently heard a great presentation from Colorado attorney Jeff Joseph, who shared a few key pointers that may help your company retain the I-9s in the event of an audit:

*       Conduct an annual in-house inspection of I-9s for all employees (or ask outside counsel conduct mock audits);

*       Identify one person to be in charge of I-9s to streamline the process and retain documents (and train this person regularly on I-9 regulations);

*       Make sure all employees have an I-9 (every employee hired after 11/6/86 should have one, with limited exceptions);

*        Make sure you're using the correct form - the current version is at www.uscis.gov;

*        Regularly check the Handbook for Employers Form M-274 issued by USCIS - it's a great reference material and updated frequently;

*        Keep I-9s for the proper period and purge after the period passes - this includes current employees and may include prior employees - you must keep the I-9 for 3 years from the date of hire or 1 year from the date of termination, whichever is longer; and

*       File your I-9s in 3 separate folders:

o       Current Employees

o       Prior Employees (review regularly for any you can purge - holding on to them for too long can actually create a liability)

o       Follow-up (those that need re-verification - for example, an employee's I-94 showed work authorization for only one year; you should calendar a reminder to review in one year to be sure they are still in compliance)

Following these tips will ensure a much easier experience if you are audited, and have the nice side effect of also streamlining your everyday operations. This is a win-win, and who doesn't love a win-win?!

We are pleased to welcome Amanda into our extended employment law family, and happy to now offer these additional services to our clients.  If you have any immigration-related issues, Amanda can be reached at 239.344.1269 or at amanda.brock@henlaw.com. 

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Today the U.S. Citizenship and Immigration Services issued its Final Rule on the Employment Eligibility Verification process.  That's the fancy name for the Form I-9, which all employers must complete for all newly hired employees.  The Final Rule becomes effective May 16, 2011. 

According to the USCIS press release, the main changes made by the interim rule include:  "prohibiting employers from accepting expired doucments; revising the list of acceptable documents by removing outdated documents and making technical amendments; and adding documentations applicable to certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands."

As you all know, the list of acceptable documents is divided into three sections:

• List A—documents that establish both identity and employment authorization (ex. U.S. passport, Permanent Resident Card) 
• List B—documents that establish only identity (ex. driver's license, ID card)
• List C—documents that establish only employment authorization (ex. birth certificate, social security card)

Review the list of acceptable documents and make sure you aren't accepting any of the documents that were removed from the list.   You may continue to use the current version of the Form I-9 (rev. 08/07/09) or the previous version (rev. 02/02/09).

If you have questions, check out the Handbook for Employers, Instructions for Completing the Form I-9.  I've used it in the past and found it to be very helpful.

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Immediately after being sworn-in as Florida's Governor on Tuesday, Rick Scott signed several executive orders, including Executive Order 11-02, which will require state agencies to use E-Verify for all current and prospective agency employees.  Perhaps more importantly for our readers, the Executive Order also requires all employers who are state contractors to use E-Verify to check the work eligibility status of anyone employed in Florida during the contract term, and anyone (including subcontractors) hired to perform work pursuant to the state contract.

E-Verify is an online system provided by the Department of Homeland Security that allows employers to check the eligibility of an employee to work in the United States.  It is currently mandatory for most federal contractors and in a handful of states.  Until now, it was not mandatory for employers (other than federal contractors) in Florida.  It will be interesting to see whether Governor Scott eventually pushes to require all private employers to use E-Verify, a promise he made on the campaign trail.  For now, however, only state agencies, state contractors, and state subcontractors will be affected.

The text of the Executive Order instructs state agencies to include the E-Verify requirement for all state contractors and subcontractors expressly as a condition of state contracts.  Based on this wording, it appears this requirement will only affect new state contracts. 

Employers who hold state contracts should pay close attention as this requirement takes effect.  For more general information on E-Verify, check out the Department of Homeland Security and the U.S. Citizenship and Immigration Services websites.

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The Department of Homeland Security ("DHS") and US Immigration and Customs Enforcement ("ICE") recently announced record-breaking immigration enforcement statistics achieved under the Obama Administration.  The press release highlights the administration's efforts to focus on "smart and effective immigration enforcement," with the identification and removal of criminal aliens a top priority.

Why is this particularly relevant to employers?  Because ICE has also ramped up enforcement of immigration laws in the workplace.  Since January 2009, ICE has audited more than 3,200 employers suspected of hiring illegal labor, and it has imposed approximately $50 million in financial sanctions.  This, according to DHS, is more than the total during the entire previous administration.

What can HR professionals do to ensure their companies aren't targeted next?  Be diligent about collecting documents that establish identity and work authorization.  Make sure you always complete I-9 Forms for new hires.  Check out the "Employer Handbook:  Instructions for Completing Form I-9," published by US Citizenship and Immigration Services ("USCIS") if you aren't sure how or when to complete the I-9 form.  You can download it here.  Seek advice from legal counsel if you have questions.

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