As the construction industry claws its way out of the Great Recession, employers need to be acutely aware of on-going company procedures that pose to threaten their re-acquired stability. At the heart of this introspection is the employer’s workforce itself, without which a company would be useless. As the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) continues to significantly increase its number of, often times, industry-driven audits (in the past four years alone more than 10,000 employers have been audited), it is imperative for employers to verify their workforce. While this may pose no concern for those already established in their culture of compliance, it is essential for all employers to take a second glance at their company’s protocols.
The construction industry revolves around a transient workforce and must adapt to ever-changing worksite locations. Therefore, when headquarters is based in a different location than the worksite, employers must ensure that correct employment verification processes are not abandoned for the sake of convenience. When verifying a mobile workforce the most common error involves Section 2 of the Form I-9. In most circumstances, it is the employer’s responsibility to complete Section 2 within three business days of the employee’s first day of employment. Through this certification process, the employer or the employer’s agent is saddled with the responsibility of inspecting the List A, or List B and List C supporting documents. However, if this employer is not in the same location as the new hire then a fairly straight-forward I-9 process quickly transforms into a complex scenario full of hidden violations.
These violations are caused by none other than the thing that has transformed all employers into fierce competitors who can operate on a global scale: technology. Known for its rapid speed and instantaneous gratification, it would make perfect sense to utilize technological measures in order to verify a remote hire. Have the remote hire take a picture of his or her supporting documents with a cellphone and email/text it to the employer; utilize Skype; or make a copy/scan it to headquarters. While all options make sense, they are nonetheless Form I-9 violations and employers will be held accountable for them. Why? Because Section 2 requires the employer or the employer’s agent to physically examine each original document to ensure its genuineness. Failing to do otherwise can result in significant fines (in 2012, worksite I-9 audit fines were reported at nearly $13 million).
The answer to this frustrating problem involves some degree of creativity and a mandatory company procedure regarding the verification of remote hires. One option is to ensure that an I-9 trained employer representative or agent (e.g. notary public) is available at each worksite location to verify every new hire’s employment authorization. This would allow for the physical inspection of the supporting documents; however, it is imperative to note that the employer and potentially the agent will be liable for the actions taken, thus, correct I-9 training is key. The government has taken note of the difficulties employers face when attempting to verify a mobile workforce but has taken no action. Therefore, a current effort to consider the utilization of post offices to assist in Section 2 completion is underway. Bottom line: employers must have a plan of action for verifying their mobile workforce, which must include correct training, physical examination of supporting documents and periodic auditing practices.
With the number of ICE audits increasing annually, the need to develop and maintain ongoing compliance measures is key towards avoiding costly fines. And as employees become more mobile, developing an acute awareness of acceptable employment verification processes will only ensure continued success in an employer’s remotely linked workforce.
