Employment Documentation Disputes

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 What Is Employee Documentation?

In order for an individual to be lawfully employed in the United States, they are required to provide their employer with documentation that shows their eligibility to work. This is done in the U.S. Form I-9.

This form was first introduced by the Immigration Reform and Control Act of 1986 (IRCA). Form I-9 is required for every new employee, regardless of their natural origin or United States citizen status.

Form I-9 verifies the individual’s employment eligibility. If an employer fails to verify an employee’s identity, the employer will be subject to penalties.

Due to the progression of national security concerns, the importance of verifying a worker is taken very seriously. Both state and federal laws address employee documentation.

Penalties for violating these requirements have increased in severity. Employee documentation involves numerous different categories of issues, including:

  • Immigration;
  • Taxation; and
  • The employment of minors.

What Types of Documents Must an Employee Provide Their Employer?

Form I-9 is mandatory for all employees, as noted above. It is typically used in conjunction with the E-Verify system.

This system is software that cross-checks the document provided with other government records. Using this software is mandatory for certain types of employment.

In addition to the I-9 Form, which a newly hired employee must complete within three days of being hired, there are other forms of documentation that an employee must provide showing their identity and employment eligibility, including:

  • U.S. Passport;
  • Certificate of U.S. Citizenship;
  • Certificate of Naturalization;
  • Permanent Resident Card;
  • Unexpired foreign passport with Form I-94;
  • Unexpired Unemployment Authorization Card;
  • Unexpired Reentry Permit;
  • Unexpired Temporary Resident card;
  • Unexpired Refugee Travel Document; or
  • Unexpired Employment Authorization Document from the Department of Homeland Security, including a photo.

An employee may establish their identity by providing one document from List B, below, and one document from List C, below, that establishes employment eligibility.

List B (Identity Verification):

  • State-issued driver’s license or ID card;
  • Federal ID card with photo;
  • School ID with photo;
  • U.S. Military Card, military dependent’s ID card, or U.S. Coast Guard Merchant Mariner Card;
  • Native American tribal document; or
  • Canadian government-issued driver’s license.

List C (Employment Eligibility):

  • U.S. Social Security Card;
  • Birth certificate;
  • Certification of Birth Abroad (Form FS-545 or Form DS-1350);
  • U.S. Citizen ID Card;
  • Native American tribal document;
  • Resident Citizen ID card (Form I-179); or
  • DHS-issued employment authorization document.

What Are the Legal Penalties for Violating Employee Documentation Requirements?

The penalties for a violation of the employee documentation requirements will vary depending on the offense. A civil fine is a common penalty.

It is important to note that criminal penalties may apply if there is a pattern of violations. Other penalties for violating employee documentation requirements can include:

  • Employers may be barred from government contracts;
  • In a case involving discrimination, a court order may be issued for the payment of back pay;
    • a court order may also be issued requiring the employer to hire the individual who was discriminated against;
  • Loss of employment; or
  • Incarceration.

If an employer is required to use the E-Verify system and fail to do so, it may result in disciplinary action, such as revocation of the employer’s business operating license. An employer who hires undocumented workers will be held accountable.

It is important to note that, if a non-United States citizen fails to show proper documentation, it may lead to deportation.

What Is Employment Eligibility Verification?

Employment eligibility verification is the process an employer uses to confirm that their foreign employee is eligible to work in the United States. Pursuant to both state and federal laws, an employer is prohibited from hiring an illegal alien or a foreign employee who is not eligible to work in the United States.

Typically, verifying employment eligibility is accomplished by having the employee provide official documents supporting their work status. An employer can use the E-Verify system to submit and check their employee’s data using the computer.

As previously noted, a violation of employment eligibility verification laws will be treated very seriously and may result in severe legal consequences for an employer, which may include:

  • Fines;
  • Jail time; and
  • In certain states, a loss of their employment license.

What Are Employment Documentation Disputes?

Employment documentation disputes typically involve the documentation of an immigrant worker in a business. For example, an employer may be investigated and will be required to prove that all of their employees are legally permitted to work in the United States.

Employment documentation disputes may also involve other matters, such as:

  • Tax reporting;
  • The number of employees being reported;
  • Labor certification issues; and
  • Information regarding employee salaries, bonuses, and benefits.
  • These employee documentation issues may arise in different types of settings, including:
  • A tax audit;
  • An employment lawsuit; or
  • During an immigration investigation.

Therefore, it is important for an employer to comply with all of the legal requirements governing employment documentation. Illegal alien employment violations create numerous different types of problems for businesses every year.

How Does Labor Certification Work?

In certain situations, an employer may be able to sponsor, or petition, a foreign alien to travel to the United States for work purposes. In these cases, the employer will be required to fulfill various work visa requirements, including labor certification.

During the process of alien labor certification, the employer will be required to prove that:

  • The foreign worker meets all the eligibility requirements for the specific job;
  • There is a demand for the job position to be filled; and
  • The job cannot be filled by local U.S. workers.

It may be difficult for an employer to meet the last requirement. The employer may be required to provide statistical information showing that they have had difficulty filling the position locally and, therefore, need to hire from an outside source.

The labor certification process must be completed in good faith or the employer may face penalties. For example, if the employer did not provide United States workers with a fair chance to apply for the position.

How Can Employment Documentation Disputes be Resolved?

An employment documentation dispute may often be resolved by an examination of the documents that are already on file. An oral representation or claim is generally not sufficient to establish the eligibility of an employee to work legally in the country.

Because of this, it is essential for both the employer and the employee to maintain adequate records of the documentation papers provided. Many work and immigration documents are not filed electronically, which may help prevent instances of mistake or fraud.

In addition, an employer can help to avoid a dispute arising by double-checking to ensure that all of their employees are legally permitted to work in the country. The employer should conduct a periodic check of their records as well as of their hiring managers to ensure that there are no employment law violations occurring in their workplace.

Do I Need a Lawyer for Help with Employment Documentation Disputes?

The laws governing employment documentation may be complex, especially when it involves labor certification. If you are an employer who needs advice, instructions, or assistance with employment documentation, it is in your best interests to consult with a contract lawyer.

If you are an employer, it is important to have a lawyer because there are numerous laws which apply to employees, and most vary by state. As noted above, the penalties for a violation may be serious, so it is important to ensure your rights are protected.

If you are an employee involved in an employment documentation dispute, a lawyer can assist you with providing the correct documentation and ensuring that you properly demonstrate your eligibility for employment. Whether you are an employer or an employee, your lawyer will represent you during any court appearances.

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