Risk management in livestock production takes many forms. Animal-management practices reduce risk of disease, safety training reduces risk of human injuries, while futures, options and other marketing tools reduce price risk. To minimize regulatory risk, including fines, legal fees and loss of critical staff members, livestock operations must properly document every employee they hire.
As large livestock operations in many areas of the United States have come to rely on immigrant workers to fill their staffing needs, they’ve also faced the challenge of documenting worker eligibility.
Jeff Joseph is a senior partner with Joseph Law Firm in Denver. The firm specializes in immigration law, and Joseph represents several large livestock operations in Colorado. Last fall, he spoke to a group of producers at an Extension workshop in eastern Colorado, updating them on their risks and responsibilities in hiring immigrant workers. M.J. Fisher, the area livestock Extension agent who organized the event, says he constantly receives questions on the topic from feedyard and dairy managers in his area, and the program was well attended.
At the core of the issue, Joseph says, is the federal “Form I-9.” Today’s employment regulations date to the Immigration Reform and Control Act of 1986, which applied the immigration laws to U.S. citizens. This law required employers, for the first time, to verify the identity and employment eligibility of all persons hired for employment, using the I-9 form. The IRCA imposed administrative sanctions ranging from $375 to $16,000 for hiring violations and $110 to $1,100 for paperwork violations.
Allie Devine, with the Devine and Donley Law Firm, Topeka, Kan., serves as special counsel for the NCBA. She notes that employers are required to verify the identity and employment eligibility of all individuals hired in the United States after Nov. 6, 1986. This means that the employer must complete and maintain a Form I-9 for each such employee. This is required even if the employer utilizes some other form of employment verification such as the E-Verify system. Employers should note that some sections are required to be completed and signed by the employee.
Employers are required by law to maintain for inspection original I-9 forms for all current employees, she adds. Employers must retain the I-9 forms for at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.
Devine encourages employers to visit the website of the Department of Homeland Security’s Immigration and Customs Enforcement division at ice.gov to access several publications that help them comply with the law.
Focus on consistency
In filing I-9 forms, employers face an additional risk of discrimination charges if they demand more documentation from applicants than the law requires.
Joseph says inconsistency in documentation accompanying I-9 forms is one of the common problems he sees at livestock operations. The employer requests and files more documents for some workers and less for others, setting himself up for charges of discrimination. At the federal level, the US Citizenship and Immigration Services lists which documents employees must show to verify their identity and eligibility to work, but some states have their own requirements, so employers should confirm what is required with an attorney or through their state livestock associations. Joseph advises employers to train a limited number of staff to manage I-9 and other employee records. Centralizing the responsibility helps assure consistency.
Devine agrees, saying employers should keep the I-9 forms and associated records for all employees together in a separate and distinct fi le. If the federal government makes a request for inspection of records, the employer will have the documents readily available and avoid lengthy searches of each employee’s personnel records.
Devine says employers sometimes make the mistake of simply not completing the Form I-9 correctly.
Employers should follow the US Citizenship and Immigration Services Handbook for Employers (M-274), she says. The handbook is available online at uscis.gov.
She adds that employers often are confused regarding what documents are acceptable for verifying the identity of an employee. The handbook offers specific examples. Employers should note that acceptable documentation changes periodically, so it is important for the employer to review the most recent copy of the M-274 handbook for the latest information.
To help ensure applicants are eligible for employment while avoiding violating their civil rights, Devine says to complete the Form I-9, but do not go beyond the requirements of the law. The M-274 handbook outlines what actions employers may not take.
According to USCIS, a variety of documents are acceptable for I-9 purposes. The employee must supply either one document that establishes both identity and employment eligibility, or one document that establishes identity together with another that establishes employment eligibility. The handbook provides lists of acceptable documents in each category.
E-Verify, or not?
Employers have the option to use the federal government’s E-Verify system to check an applicant’s identity and work eligibility. According to USCIS, the voluntary program is closely linked to Form I-9 and exists to strengthen the Form I-9 employment eligibility verification.
Devine says while the types of businesses using E-Verify are diverse and can include feedyards or ranches, businesses with full time human-resource professionals and large numbers of employees are more likely to use the system. “Employers seeking to use the system should carefully read the memorandum of understanding required to be signed to participate in the program,” she says. Employers also should discuss the program with an employment law attorney to fully understand the risks and benefits of enrolling in the program.
Joseph generally does not advise livestock operations to use the E-Verify system voluntarily. Some states require it, and in some cases where employers face fines for violations, volunteering to use the system can help them negotiate a settlement. But for most employers, he says, E-Verify just creates more hurdles without any real benefit for employers who already follow the rules.
Be prepared
Joseph has seen livestock operations fall under growing scrutiny from ICE in recent years. In most cases, he says, the audits do not result in fines or penalties. The authorities typically check Social Security numbers from I-9 forms though, and if they find numbers that do not match, they’ll require the employer to resolve the discrepancy to avoid sanctions.
Devine explains that a “no match” letter from the Social Security Administration advises the employer that there is a discrepancy between the employee’s identity and the Social Security number. The employer, she says, should respond to the letter by taking the following steps at a minimum.
1. The employer should review the employee records of each person whose Social Security number is listed in the letter.
2. The employer should respond to the Social Security Administration with any discrepancies found. If the letter refers to a person who is no longer employed, then notify the Social Security Administration that the person is no longer employed. If the person is still employed, notify the employee in writing and advise him/her to immediately contact the Social Security Administration to resolve the issue.
3. The employer should follow up with the employee to assure steps have been taken to resolve the problems. Employers should give employees adequate time to resolve the problems and keep documentation of actions taken.
4. If the issues cannot be resolved, the employer should contact legal counsel and discuss terminating the employee. If employers have actual knowledge that a person is not authorized to work in the United States, they must terminate the employment of the person or risk being accused of knowingly employing an unauthorized alien.
TOOLS FOR COMPLIANCE
The federal government offers several online resources to help employers comply with immigration and employment laws.
• I-9 Form from the U.S. Citizenship and Immigration Services: uscis.gov/fi les/form/i-9.pdf
• Department of Homeland Security, Immigration and Customs Enforcement: ice.gov
• U.S. Citizenship and Immigration Services, including Handbook for Employers (M-274): uscis.gov
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