Jon
Yarbrough's
"Employment
Law Corner"
courtesy of the
Asheville Citizen-Times
The
Employment Law Corner is the property
of the Asheville
Citizen-Times to whom we extend our thanks for allowing us to
republish the article.
October 24, 2005:
"Don't trip on the
Tarmac;
be sure I-9 forms comply"
By Jonathan
W. Yarbrough
Operation Tarmac is an initiative
of U.S. Immigration and Customs Enforcement and other federal and
state agencies to, among other things, investigate the immigration
status of airline-industry workers in the United States.
Since the program began in January 2002, ICE has audited more than
5,800 airport businesses nationwide. The program has resulted in more
than 1,000 arrests of illegal immigrants working at aviation
maintenance facilities and almost 800 criminal indictments.
As part of Operation Tarmac, federal agents reviewed I-9 forms on file
with aviation-related businesses and interviewed those workers who
appeared to be unauthorized. Hundreds of thousands of I-9s have been
reviewed and numerous arrests made as a result.
Although your business is unlikely to be targeted
in an operation such as Operation Tarmac, you should be concerned that
your business is complying with the I-9 requirement.
The law requiring employers to complete the Form
I-9 has been in place for almost 20 years, yet employers still make
mistakes filing out the forms or otherwise ignore the law's
requirements.
Under federal law, an employer must: (1) not
knowingly hire, or continue to employ, any person not authorized to
work in the United States and: (2) complete Form I-9 to verify the
identity and employment eligibility of every new employee, whether the
person is a U.S. citizen or foreign national, hired on or after Nov.
6, 1986. Compliance can be challenging for employers, who must not
employ unauthorized workers but are subject to penalties and potential
lawsuits for over-documentation and/or discrimination arising from
"excessive" I-9 vigilance.
By signing the Form I-9, an employer attests, under
penalty of perjury, that it has examined original documentation
presented by the employee, that such documentation "appears on its
face to be genuine" and relates to the named individual, and that to
the best of the employer's knowledge the employee is authorized to
work in the United States.
Whether a document appears to be genuine
incorporates a standard of reasonableness. Employers are not expected
to be experts in detecting fraudulent documents. If the documents do
not reasonably appear on their face to be genuine or to relate to the
person presenting them, the employer must not accept them
Documents should be presumed valid unless they have
been obviously altered, are clearly fake, or the employee cannot
reasonably explain any discrepancies between his or her physical
appearance and the picture or physical description on the
documentation. An employer may not insist on seeing a specific type of
identification or work eligibility document, nor may it request more
or different documents than are required
Jonathan W. Yarbrough is a member of the law firm of Constangy,
Brooks & Smith LLC, which is dedicated to representing management
exclusively in all aspects of the employment relationship. Contact
Yarbrough at 277-5137 or jyarbrough@constangy.com.
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