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Rules for proving legal status can be tricky for employers

POSTED: October 9, 2008 5:00 a.m.

All employers have to complete a federal verification of eligibility for employment for all workers. The form, called an I-9, requires the presentation of one or more documents that provide positive identification of the person's identity and his or her legal status for work.

The federal government has recently revised the I-9 and reduced the number of documents that are eligible.

For employers, verifying employment is a challenge to stay within the federal law regarding hiring while not violating the potential workers' rights under federal law.

Madeline Wirt, a partner in the Gainesville law firm of Whelchel, Dunlap, Jarrard and Walker, specializes in employment law. She said her advice to her clients is straightforward.

"I tell them they are walking a very fine line," Wirt said. "You're damned if you do and damned if you don't. There are rules in the immigration law and in Title 7 about discrimination against aliens who are either citizens, permanent residents or are otherwise authorized to work."

But if something doesn't add up, you don't have to take it, Wirt said.

"Your obligation as an employer is to look at the documents that qualify and don't ask for specific documents.

"Look at what they present to you, and if on its face it looks OK, then accept it. But if looks like it's not OK, don't accept it," Wirt said

Some employers, including municipalities and companies that are doing business with the state, are required to use the computer based e-verify system. E-verify is a voluntary program offered through the federal government to offer an immediate verification. The online program shows if a name and Social Security number match. A stolen Social Security number with the incorrect name will be rejected, and the employer then can ask the worker for a correct number or refuse to hire him or her.

Employers not using the e-verify system are likely to receive a "no match" letter from the Social Security administration. A federal law that would have provided the no-match information to immigration is on hold due to a lawsuit.

Wirt said getting notice of a discrepancy that potentially indicates an illegal worker should be taken seriously.

"If you get actual notice somewhere along the line, that's different," she said. "I think it happens a lot where employees get close to their employers and come forward and say ‘I'm not legal. Do you think you can get me legal?'"

She said the employer's fondness or attachment to the worker should not overshadow the seriousness of federal law.

"At that point you're on notice," she said. "At that point you need to see if you can get them legal, which in most instances you can't. If you can't, you need to go ahead and terminate them."

Hiring someone with false identification that looks genuine is not a violation by the employers. However, knowingly keeping an illegal worker on the payroll could result in criminal charges resulting in fines and possible imprisonment.



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