For the most part, the Trump Administration has done little to give those in Human Resources headaches, unlike the prior administration. Where the Trump Administration has the potential to cause those in HR headaches relates to immigration enforcement. On October 17, 2017, Thomas Homan, acting director of Immigrations and Customs Enforcement (ICE), announced that they are quadrupling the number of worksite enforcement actions nationwide. What does this mean? Expect more Form I-9 inspections. What is Form I-9? This is the form that must be completed when you hire an employee and the employee must present two forms of identification which establish their identity and right to work in the United States. For those who were born in the United States, it usually includes a driver’s license and social security card. For a discussion of which documents suffice for completion of the I-9 form, check out this link a page on the Texas Workforce Commission website. https://www.twc.state.tx.us/news/efte/i_9_requirements_lists.html
One of the concerns with these ICE inspections is they are occurring proximate in time with the September 2017 announcement by the Trump Administration ending the Obama era policy of Deferred Action for Childhood Arrivals (DACA). In addition, those employers who have workers who possess Work Permits, aka Employment Authorization Cards, must check to make sure these cards have not expired. When you initially employ the individual, you should have made a copy of the card. Your copy of the card should display its expiration date. The permits are only good for two years. Another complicating factor is the U.S. Citizenship and Immigration Services (USCIS) is taking longer than ever to process applications for renewal of the Work Permits. Many employees working under a work permit have not learned of USCIS’ delay in processing applications for renewal and are applying too late to have their applications processed before the expiration of their current work permit.
What do you when an employee’s permit to work expires? Ask them if they have any of the other forms of work authorizations listed in Column A. It is possible that since the start of their employment they obtained their Permanent Resident Card or other authorization to work. If the employee cannot produce another document from List A, then they cannot continue to work.
Do you have to terminate the employee? No, but they cannot work until their work permit renews. Effectively, you would have to remove them from the workforce and place them on an unpaid leave of absence until their permit is renewed. Currently, USCIS is taking up to 150 days from the application being submitted to process a renewal application. Using an unpaid leave of absence could be problematic as it relates to leaves of absence for employees on medical leave. If you have a hard line policy that only allows the 12 week FMLA leave of absence for qualifying conditions, but you allow an employee whose application for renewal work permit has not been accepted to take an unpaid leave of absence, this could cause you problems in the future if someone claims discriminatory application of the policy.
How can you prevent this from affecting your workforce? Counsel those employees working under a work permit to apply at least six months before the application is due for renewal. Some employers may choose to take the opposite route and terminate those employees with work permits that are set to expire rather than have to dealing with the costs involved in replacing the employee in a few months. This is an unwise decision as it could subject the employer to race or national origin discrimination claims.
What if the employee is really valuable and you can’t afford to lose him/her? A national tree trimming company was just fined $95 million dollars by ICE. The fine is $548 to $4384.00 per employee. The penalty doubles the second and third time. Clearly, the tree trimming company was running afoul of the law. Interestingly, paperwork violations are $220.00 to $2191.00 per violation. This means it is vital that you keep proper documentation, meaning an I-9 for every employee and copies of the documentation submitted to your business establishing their right to employment (i.e. driver’s license, social security card or Employment Authorization Card). Note, the website from the Texas Workforce Commission and the I-9 form itself explains the documentation that you must have.