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When Can an Employer's Use of Subcontractors Still Lead to Liability for the Employer?

Posted by attorney Austin Kennedy

It's no secret, chief among the many perks from an employer's perspective regarding the use of subcontractors is the fact that an employer is not required to verify an independent contractor's employment authorization documents through the I-9 process. By extension, most employers assume that they don't have to worry about the ICE man knocking on their door, and the world of potential civil and criminal penalties associated with such a visit.

Unfortunately, in far too many instances this assumption is dangerously incorrect. In fact, according to the law of the land any person or entity who knowingly uses a contract, or subcontract or exchange entered into, renegotiated or extended after Nov. 6, 1986, to obtain the labor or services of an alien in the U.S. knowing the alien is unauthorized to work will be considered to have hired the alien for employment in violation of U.S. law.

In other words, an employer's use of subcontractors is not a guarantee of immunity from immigration-related concerns, if the employer has reason to believe the workers lack proper authorization or if there is not a true independent contractor relationship in place. Merely labeling a worker an "independent contractor", or utilizing boilerplate contractual language to the same effect is not going to save the employer's day. In the near future we'll further explore the question of when an employer may be at risk for "knowingly" hiring unauthorized workers who were allegedly independent contractors, and also take a look at the way this area of the law factored in to the ICE raids at WalMart in 2003.

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