• Employer Sanctions in General
• The Federal E-Verify Program
• The Colorado Employer Compliance Laws
  • Colorado Employment Verification Requirements
  • Colorado Requirements regarding Public Contracts for Services
• Arizona Employer Compliance Laws

• The No-Match Letter Policy

EMPLOYER SANCTIONS IN GENERAL

Section 274A of the 1986 Immigration Reform and Control Act made employment of unauthorized workers illegal.  In general, it is unlawful for a person or other entity to hire, recruit or refer for a fee, for employment in the United States (U.S.), a worker who is known to be unauthorized for employment.  Employers have a responsibility to examine sufficient documentation to establish employment eligibility.  To determine the documents which establish identity, employment authorization, or both, consult the current I-9 form and instructions which can be found on the United States Citizenship and Immigration Service (USCIS) website at www.uscis.gov.   

An employer may not request individuals to present specific documents in lieu of other valid documents. In addition, an employer must request an individual attestation of employment authorization on Form I-9 in which the employee attests under penalty of perjury, that he or she is eligible for employment. This form must be retained by the employer after completion and made available for inspection by officers of the Department of Homeland Security (DHS) or the Department of Labor.

Our firm assists employers with compliance on I-9 completion and routinely performs audits of I-9 forms and training to human resources departments on the proper completion and storage of I-9 records.

THE FEDERAL E-VERIFY PROGRAM

The E-Verify program is a web-based program that provides a company with a way to electronically verify the employment authorization of newly-hired employees, regardless of citizenship.

The E-verify program is not to be used to undertake pre-employment screening of applicants and using it for this purpose could violate federal anti-discrimination laws.

You can register for E-Verify onlne here:  E-Verify registration. 

E-Verify is a free system and is voluntary to most employers.  However, many states, including Colorado, have implemented laws that mandate registration in E-Verify.  In the State of Colorado, participation in E-Verify is mandatory for contractors and subcontractors performing services on public contracts.

To participate, the employer needs a working computer and access to the internet.  E-Verify allows the employer to confirm the employment eligibility of all newly hired employers instantaneously and impoves the accuracy of the I-9 completion process and wage and tax reporting.

To participate, the employer must register and sign a memorandum of understanding with the Department of Homeland Security that participation in the program is limited to future hires, that the employer will not use E-Verify as a pre-employment screening mechanism and other items. 

The Employer must still complete and maintain the I-9 forms for all employees and the requirements remain the same with the exception that all "List B" identity documents must contain a photograph.

If you have questions about participation in the E-Verify program, please contact Joseph Law Firm, PC by clicking here:  Joseph Law Firm, PC.

THE COLORADO EMPLOYER COMPLIANCE LAWS

Colorado Employment Verification Law, Colorado Revised Statute section 8-2-122

Effective January 1, 2007, Colorado law (8-2-122) requires Colorado employers to verify and document the legal eligibility for employment of newly-hired employees.  This law is in addition to and supplements the already existing federal employment verification requirements such as the I-9 requirements.

The law provides that, within 20 days after hiring each new employee, each employer in Colorado shall keep a written or electronic copy of an affirmation for the term of employment of each employee.  The affirmation attests that:

• The employer has examined the legal work status of such newly-hired employee
• The employer has retained file copies of the documents required by 8 U.S.C. section 1324a (i.e. copies of the employee's I-9 documents
• The employer has not altered or falsified the employee's identification documents
• the employer has not knowingly hired an unauthorized alien

The Colorado Department of Labor has a sample affirmation form posted on its website which employers can use for this purpose.  You can access the form by clicking here:  Colorado employer attestation

Employers are defined broadly under the law to include both public and private employers.  Employers are defined as, "a person or entity that transacts business in Colorado; at any time, employs another person to perform services of any nature; and has control of the payment of wages for such services or is the officer, agent, or employee of the person or entity having control of the payment of wages."

The penalties for violating the law are a fine of not more than $5,000.00 for the first offense and not more than $25,000.00 for a second and subsequent offense.

The Division of Labor within the Colorado Department of Labor is charged with enforcing the law and may conduct random audits of employers in Colorado to obtain the required documentation.

If you have questions about compliance with Colorado's employer compliance laws, please contact our office by clicking here:  Contact Joseph Law Firm, PC

Colorado Undocumented Worker and Public Contracts for Services Law, Colorado Revised Statute section 8-17.5-101 and 102

Effective August 7, 2006, Colorado law (8-17.5-101 and 102) imposes requirements upon persons who have a public contract for services with state agencies or political subdivisions. 

The law provides that a state agency or political subdivision shall not enter into or renew a public contract for services with a contractor who:

• Knowingly employs or contracts with an undocumented worker to perform work under the contract, or
• Knowingly contracts with a subcontractor who knowingly employs or contracts with an undocumented worker to perform work under the contract.

Prior to executing a public contract for services, each prospective contractor shall certify that, at the time of the certification:

• It does not knowingly employ or contract with an undocumented worker, and
• That the contractor has participated or attempted to participate in the federal E-verify program in order to confirm the employment eligibility of all employees who are newly hired for employment in the United States.

The law requires that each public contract for services contain the following provision:

"The contractor shall not:

• Knowingly employ or contract with an illegal alien to perform work under the public contract for services, or
• Enter into a contract with a subcontractor that fails to certify to the contractor that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under the public contract for services."

The law requires that each public contract for services also contain the following provisions:

• A provision stating that the contractor has confirmed or attempted to confirm the employment eligibility of all employees who are newly hired for employment in the United States through participation in the federal E-Verify program and, if the contractor is not accepted into E-Verify prior to entering into a public contract for services, that the contractor shall apply to participate in E-Verify every three months until the contractor is accepted or the public contract for services has been completed, whichever is earlier. This provision shall not be required or effective in a public contract for services if E-Verify is discontinued;
• A provision that prohibits the contractor from using E-Verify procedures to undertake pre-employment screening of job applicants while the public contract for services is being performed;
• A provision that, if the contractor obtains actual knowledge that a subcontractor performing work under the public contract for services knowingly employs or contracts with an illegal alien, the contractor shall be required to (1) notify the subcontractor and the contracting state agency or political subdivision within 3 days that the contractor has actual knowledge that the subcontractor is employing or contracting with an illegal alien; and (2) terminate the subcontract with the subcontractor if within three days of receiving the notice required the subcontractor does not stop employing or contracting with the illegal alien; except that the contractor shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien;
• A provision that requires the contractor to comply with any reasonably request by the Colorado Department of Labor made in the course of an investigation that the department is undertaking pursuant to Colorado law (8-17.5-102(5)).

A contractor is defined as, "a person having a public contract for services with a state agency or political subdivision of the state."

A public contract for services is defined as, "any type of agreement, regardless of what the agreement may be called, between a state agency or political subdivision and a contractor for the procurement of services."

Services is defined as, "the furnishing of labor, time, or effort by a contractor or a subcontractor not involving the delivery of a specific end product other than reports that are merely incidental to the required performance."

State agency is defined as, "any department, commission, council, board, bureau, committee, institution of higher education, agency, or other governmental unit of the executive, legislative, or judicial branch of state government."

Political subdivision is defined as, "any city, county, city and county, town, special district, school district, local improvement district, or any other kind of municipal, quasi-municipal, or public corporation.

The Colorado Department of Labor may investigate whether a contractor is complying with the provisions of a public contractor for services and has the authority to:

• Conduct on-site inspections where a public contract for services is being performed;
• Request and review documentation that proves the citizenship of any person performing work on a public contract for services; or
• Take any other reasonable steps that are necessary to determine whether a contractor is complying with the provisions of a public contract for services required pursuant to Colo. Rev. Stat. 8-17.5-102(2).

The Colorado Department of Labor shall receive complaints of suspected violations of a provision of a public contract for services required pursuant to 8-17.5-102(2) and shall have discretion to determine which complaints, if any, are to be investigated.

If a contractor violates a provision of the public contract for services required pursuant to 8-17.5-102(2), the state agency or political subdivision may terminate the contract for breach of the contract.  If the contract is so terminated, the contractor shall be liable for actual and consequential damages to the state agency or political subdivision.

A state agency or political subdivision shall notify the office of the Secretary of State if a contractor violates a provision of a public contract for services required pursuant to 8-17.5-102(2) and the state agency or political subdivision terminates the contract for such breach.

Based on this notification, the Secretary of State shall maintain a list that includes the name of the contractor, the state agency or political subdivision that terminated the public contract for services, and the date of the termination.  A contractor shall be removed from the list if two years have passed since the date the contract was terminated, or if a court of competent jurisdiction determines that there has not been a violation of the provision of the public contract for services required pursuant to 8-17.5-102(2).  The list shall be available for public inspection at the office of the Secretary of State and shall be published on the internet on the website maintained by the Secretary of State.

If you have questions about compliance with Colorado's employer compliance laws, please contact our office by clicking here:  Contact Joseph Law Firm, PC

THE ARIZONA EMPLOYER COMPLIANCE LAW

The Legal Arizona Workers Act (A.R.S. sections 23-211 and 23-214 (2007)) allows the Superior Court of Arizona to suspend the business licenses of all employers in the State of Arizona who knowing employ unauthorized workers. Under the Act, county attorneys may bring suit against employers who knowingly hire or employ unauthorized workers and an employer found liable faces possible suspension of business licenses, and can be ordered to file quarterly reports of new hires and to file an affidavit that it has terminated all unauthorized workers. The law also requires that after December 31, 2007, all employers must verify the employment eligibility of employees through E-Verify.

NO-MATCH LETTERS

Every year, the Social Security Administration (SSA) processes W-2 forms and credits social security earnings to workers. However, if a name or social security number does not match the SSA records, the agency frequently issues a no-match letter to the employer and employee in an attempt to obtain corrected information. Recently, the SSA has not been able to match employee information for 6-7 million workers a year. The social security earnings for these individuals go into a suspense file until the SSA can resolve the discrepancies. Presently, $280 billion dollars are stored in the earnings suspense file.

Federal regulations have expanded the definition of "constructive knowledge" to include the failure to take reasonable steps to address three situations: (1) an employee's request for the employer's sponsorship of the employee for a labor certification or visa petition; (2) receipt of a no-match letter from the SSA; and (3) receipt of a notice from DHS (usually after an I-9 audit) that the employee's employment authorization documents presented in connection with completion of the I-9 form do not match DHS records.

If an employer receives a no-match letter, the employer has 93 days to complete reconciliation of information when there is a discrepancy.  The regulation gives immunity from a constructive knowledge charge premised on such notices should the employer follow the procedure exactly as stated. While acknowledging that other actions taken by employers may constitute "reasonable steps" in the context of a "total facts and circumstances test," employers who fail to follow the protocol may not have the "safe harbor" from a finding of constructive knowledge in the event of a civil or criminal investigation.

Within 30 days of receipt of the notification from the Government:
No-Match letter from SSA: The employer must check its records to determine whether the discrepancy was caused by a clerical error, correct the error with SSA, and verify that the corrected name and social security number now match SSA's records. The rule advises employers to retain a record of the manner, date, and time of such verification. The employer may update the I-9 form relating to the employee or complete a new I-9 (retaining the original), but should not perform a new I-9 verification.

If the employer determines that the SSA no-match is not a result of an error in the employer's records, the employer must promptly request that the employee confirm that the name and social security account number in the employer's records are correct. If the information is incorrect, the employer must make corrections, inform the SSA of the correction and verify a match on the corrected information, and make a record of its actions.

If the employee confirms that the employer's record information is correct, the employer must promptly advise the employee of the date of receipt of the no-match letter and advise the employee to resolve the discrepancy with the SSA no later than ninety (90) days after the receipt date. The employer is under no legal obligation to advise the employee regarding the means or manner of resolving the discrepancy with the agency.

Notice of discrepancy from DHS: The employer must contact the local DHS office in accordance with the written notice's instructions and attempt to resolve the question raised by DHS about the immigration status document or employment authorization document. Note that the specific instructions in the notice may provide less than 30 days for the employer to respond.

Within 93 days of receipt of notification from the Government:
If the discrepancy cannot be resolved with either SSA or DHS within 90 days of receipt of the written communication from either agency, the employer must attempt to reverify the worker's employment eligibility by completing a new I-9 employment verification form. Companies should use the same procedures as when completing an I-9 form at the time of hire, with a few exceptions:

• The employee must complete section one and the employer must complete section two of the new I-9 form within 93 days of receipt of the notice from either SSA or DHS;
• The employer cannot accept any document (or receipt for such a document) referenced in the DHS notification or any document (or receipt) that contains a social security number that is the subject of the SSA no-match letter to establish employment authorization or identity;
• The employee must present a document that contains a photograph in order to establish identity or both identity and employment authorization; and
• The new I-9 form should be retained with the original I-9 form(s).

If the employer cannot verify the employee's work eligibility through completion of a new I-9 form, the employer must decide whether to terminate the employee, or face the risk in any subsequent DHS enforcement action of being determined to have constructive knowledge and being penalized for the continuing employment of an unauthorized alien. The final rule provides that whether an employer would be found to have constructive knowledge in any particular case will depend on the "totality of relevant circumstances." An employer should not terminate an employee until the process is completed, unless the employer obtains actual knowledge (such as through an admission by the employee) that the employee is not eligible for employment in the U.S.

DHS takes the position that applying the safe harbor rule in a uniform manner for all employees whose account numbers or work authorization documents are challenged by the SSA or DHS should not subject an employer to liability for document abuse and/or unlawful discrimination on the basis of national origin and citizenship status. No "safe harbor" protocol is available where an employee requests employer sponsorship for a labor certification or visa petition and the employee turns out to be unauthorized. Where the request is made by an employee who admits to the employer that he/she is currently unauthorized, or where the request is inconsistent with information provided by the employee in connection with the employment verification process (i.e., a claim of U.S. citizenship or permanent resident status in Part I of the form), the employer may be charged with actual or constructive knowledge of unauthorized status if the employer permits the employee to continue working for the employer.

Disclaimer: The information contained here is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk, and individual eligibility should be verified by consulting with an attorney in our office.  If you would like to make an appointment with an immigration attorney regarding your immigration matter, contact Joseph Law Firm, P.C.