Not to Hire or Continue to Employ Unauthorized Workers
It is illegal for an employer to hire, recruit or refer for a fee someone NOT authorized to work. Determining whether the employer has "knowledge" that the person is unauthorized to work is based upon totality of circumstances" and therefore not based on any one factor by itself. An employer does not escape the duty to investigate suspicious circumstances.
Examples of When an Employer has Knowledge
Employers are sometimes confronted with awkward situations which place the employer in the situation of having knowledge and therefore requires termination of the employee. This can occur when an employee tells employer, knowledge can be presumed by failure or improper completion of an I-9, when an employer petitions for current employee without authorization to work, or when an employer acts with reckless disregard by permitting another individual to introduce unauthorized workers to the workforce.
Who The Law Covers?
The Immigration Reform and Control Act of 1986 (IRCA) covers employers who are natural persons and entities. It covers an agent or anyone acting directly or indirectly in the interest of the person or entity who engages the services or labor of an employee for wages or other remuneration, for example human resource managers. It covers industry associations and labor contractors when they hire, recruit or refer for a fee for their members, however all other recruiters are specifically exempt from the I-9 reporting requirements. The law also covers any size employer and all employees. There is no exemption for small employers.
Which Hires Does IRCA Not Cover?
The Immigration Reform and Control Act of 1986 (IRCA) requirements to complete an I-9 is not needed in the situation of casual hires, employees hired before November 7, 1986, and independent contractors.
Employing or Continuing to Employ and Unauthorized Worker
Once an employer is informed of that a worker is unauthorized by the government, the employee, or by virtue of an expired work authorization the Employer is on constructive notice of the violation. The Employer is required to inquire further and question the employee. When an employer questions the employee, it should request they obtain USCIS confirmation of authority to work. The employer should never take self-serving statements alone from the employee.
How Quickly Must the Employer Terminate Employment?
This is not specified by IRCA. However, one Administrative Law Judge found failure to fire an unauthorized worker for 2 weeks after constructive notice was sufficient basis to impose sanctions.
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