I-9 Audits and Workers Rights. Weinberg, Roger & Rosenfeld Monica Guizar, Attorney

Transcription

1 I-9 Audits and Workers Rights Weinberg, Roger & Rosenfeld Monica Guizar, Attorney

2 What is an I-9 Audit? Inspection by federal agency to make sure employers are complying with federal immigration law. Employers are required to keep I-9 records on file for 3 years after hire or 1 year after employment ends, whichever period of time is greater. Employers must make the records available for inspection by the Department of Homeland Security (DHS), the Department of Labor (DOL), and/or the DOJ Immigrant and Employee Rights Section (formerly Office of Special Counsel (OSC)). Weinberg, Roger & Rosenfeld 2017

3 What is an I-9 Audit? DHS typically gives Employers a 3-day notice to inspect. Failure to comply is a violation of federal immigration law. DHS inspects I-9 forms and checks whether the forms completed correctly and also reviews the information contained in those forms. DHS can also investigate an employer s hiring practices. Weinberg, Roger & Rosenfeld 2017

4 What is an I-9 Audit? At the conclusion of the audit, DHS may issue its results and serve the employer with a notice, such as: Notice of Inspection Results Notice of Suspect Documents Notice of Intent to Fine Weinberg, Roger & Rosenfeld 2017

5 What is an I-9 Audit? If an employer fails to correct the discrepancies, or continues to employ a worker knowing that the worker is not authorized to work, DHS can issue sanctions against the employer Weinberg, Roger & Rosenfeld 2017

6 Impact of Audit on Workers Loss of employment Risk arrest and criminal prosecution Prior orders of removal or deportation Criminal records Prosecution for misuse of SSN or identity theft Arrests can happen at: Home Work

7 Response to I-9 Audit Confirm it is a government-directed I-9 audit and not an employer self or internal audit. Educate Union staff and workers about audit & process. Hold an immigration clinic & refer workers to immigration counsel. Be prepared to respond to individual arrests and detention. Weinberg, Roger & Rosenfeld 2017

8 I-9 Audits Weinberg, Roger & Rosenfeld 2017

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10 I-9 Audits Weinberg, Roger & Rosenfeld 2017

11 I-9 Audits and Do s & Don ts DO inform members of their rights to remain silent Do inform members of their right to speak to an attorney Do inform members of the I-9 Audit process and the employer s obligations Do NOT encourage members to violate the law, use false documents, etc. Do NOT provide legal advice Do Represent them in every step of the process with the Employer Weinberg, Roger & Rosenfeld 2017

12 AB 450 Immigrant Worker Protection Act California Labor Federation and SEIU California sponsored AB 450 (Chiu) to protect workers rights during worksite enforcement and create clear guidelines for employers when immigration agents appear at the workplace. 12

13 What does AB 450 do? Prohibits employers from granting immigration agents physical access to worksites. Prohibits employers from granting immigration agents access to worker records. Prohibits reverification of work authorization documents when not required by law. Requires that Employers provide notice to workers and Union of I-9 audits. 13

14 AB Non-public areas of Worksite Employer cannot grant immigration agents voluntary access to non-public areas of a worksite. Agents must have a judicial warrant to enter private areas of worksite. Employer can take immigration agents to nonpubic areas in order to determine if the agent has a judicial warrant so long as the agent does not have access to employees. 14

15 AB 450 Employee Records Employers cannot grant immigration agents voluntary consent to access, review, or obtain employee records unless the employer received a Notice of Inspection. In that case, employer may provide worker I-9 forms and documents listed in the Notice of Inspection only. The Employer can also provide records if the agent has a subpoena or judicial warrant. Employers retain the right to challenge the validity of a subpoena or warrant for employee records. 15

16 What does AB 450 do? Prohibits Employer reverification of I-9 records when not required by law. Employers are prohibited from reverifying the employment eligibility of any current employee at any time or in any manner not required by federal law. Employers must provide notice to workers and Unions of record inspections. Employers must post a notice informing employees of any inspections by an immigration agency of I-9 forms or other employment records within 72 hours of receiving notice of the inspection. 16

17 QUESTIONS???