Tag Archives: immigration

New I-9 Form Required September 18, 2017

Effective September 18, 2017 employers must use a new and updated version of Form I-9, the Employment Eligibility Verification Document.  The easiest way to identify the new form is by the date (07-17-17) noted in the bottom left corner.

Key points for employers include the following:

  1. The new I-9 must be used for any new employees hired on or after September 18, 2017. It is not necessary to complete the new form for any current employee.
  2. Using the wrong version of the form is considered a violation and could subject the employer to civil fines if Immigration and Customs Enforcement (“ICE”) conducts an I-9 inspection.
  3. As was the case previously the I-9 Form must be completed on the employee’s first day of employment. The Form now states it must be completed “no later than the employee’s first day of employment.”  Previous instructions noted that the form had to be completed by “the end of” the first day of employment.
  4. The list of acceptable documents on Page 3 of the Form has been revised. There are changes to List C to include certain documents evidencing the birth abroad of an employee.  These documents are Certificate of Report of Birth (Forms DS-1350 and FS-545) and the Consular Report of Birth Abroad (Form FS-240).
  5. The Handbook for Employers: Guidance for Completing Form I-9 Form (M-274) was updated in July 2017.  This handbook is a great resource on completing I-9s, retention requirements, unlawful discrimination and other prohibited practices and use of the E-Verify system. You can obtain a copy of the handbook and the new I-9 Forms by visiting the website I-9 Central, which is the official website of the Department of Homeland Security.
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E-Verify Soon Required For Some Tennessee Employers

Thanks to an amendment to a Tennessee law  some Tennessee employers will soon be required to use E-Verify.  Effective January 1, 2017 private employers with fifty (50) or more employees must use E-Verify to verify the work authorization status of all employees hired on or after that date.  This is a change to the Tennessee Lawful Employment Act, which currently allows all employers to choose between using E-Verify or collecting one of eleven specified identification documents in order to comply with the law.

Penalties for noncompliance with the TLEA include a $500 penalty plus $500 per employee or non-employee not verified, or a copy of appropriate verifying documentation not maintained, for the employer’s first offense.  Those amounts increase to $1000 for a second offense and $2500 for a third offense.

The TLEA allows first time violators to receive a warning in lieu of a penalty if the employer remedies the violation within 45 days of receipt of the notice and initial order from the Tennessee Department of Labor.  Employers previously had 60 days to achieve compliance, but the amendment shortened the time to 45 days.  Also, if the employer fails to remedy the violations within 45 days the initial order shall be deemed a final order not subject to further review.

All Tennessee employers should review their verification documentation now by conducting an “I9 Audit” to make sure they are in compliance with the TLEA and applicable federal law.  Tennessee employers with 50 or more employees can enroll in E-verify now, or wait until January 1, 2017 to do so, but make sure you enroll.  The failure to do so can be costly!

 

 

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Does An Illegal Alien Have Standing To Bring A Retaliatory Discharge Claim In Tennessee?

In Torres v. Precision Industries, P.I., Inc., et al. the Tennessee Court of Appeals recently answered the question of whether an illegal alien in Tennessee has standing to bring a retaliatory discharge claim.  Mr. Torres worked for Precision Industries as a convertor builder at its automotive manufacturing plant in Whiteville, Tennessee.  Torres was injured on the job and eventually retained a lawyer to represent him in connection with his workers’ compensation claim.  Torres’ lawyer called the defendants seeking the company’s fax number.  After this phone call Precision Industries Safety Manager and General Manager confronted Torres about his workers’ compensation claim and his decision to hire an attorney.  Later that day Torres was terminated for an alleged “lack of work”.  Torres then filed suit alleging he was discharged in retaliation for asserting a workers’ compensation claim.  It is undisputed that during the time he was employed by defendants Torres was an illegal alien.

The trial court granted defendants Motion for Summary Judgment and held that Torres could not assert a retaliatory discharge claim because he was not capable of employment due to his undisputed status as an illegal alien.  Torres appealed this decision to the Tennessee Court of Appeals and the Court of Appeals reversed.

The Court of Appeals first reviewed whether Torres’ immigration status would prevent him from filing a claim for workers’ compensation benefits.  The Court held that for workers’ compensation purposes an employee is anyone employed by another who works for wages or a salary, without regard to whether the employment is legal or illegal.  The Court also relied on a previous decision by the Tennessee Workers’ Compensation Panel, Silva v. Martin Lumber Co., which held that an illegal alien is entitled to workers’ compensation benefits.

After making these finding the Court of Appeals considered defendants’ argument that Torres was incapable of performing the job.  The Court of Appeals reviewed the case relied on by defendants, Leatherwood v. UPS, and held that it stood for the proposition that an employee can be legally fired because he is physically incapable of performing a job, not that an illegal alien lacks standing to bring a retaliatory discharge claim.  As a result, the decision granting summary judgment was reversed and the case was remanded to the trial court for further proceedings.

This case does not mean that employers should ignore the immigration status of their employees.  To the contrary, it is illegal to knowingly employee an illegal alien and doing so can result in significant monetary penalties.  Additionally, terminating an employee because he or she is an illegal alien is a legitimate, non-discriminatory and non-retaliatory reason for the termination.  But an illegal alien who is fired for filing a workers’ compensation claim, or in retaliation for exercising other rights, can bring a retaliatory discharge claim and recover damages regardless of his immigration status.

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New I-9 Form

USCIS published a new Form I-9 on March 8, 2013.  Employers have until May 7, 2013 to change to the new forms.  A link to the new form can be found here: http://www.uscis.gov/files/form/i-9.pdf

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