So far in this series of tips to avoid common I-9 mistakes, we’ve talked about the timeframe for completing the Form I-9, how long employers should retain I-9 records and when the reverification process should be performed. Next, we’re turning our attention to a topic that is equally as important: discrimination.

Tip #4: Understand the rules regarding employment discrimination.

The I-9 compliance process can be complicated, and it’s important to understand the rules in order to avoid costly fines and to maintain compliance. While it is important to follow the appropriate procedures and to verify employees, many employers make the mistake of being overly cautious to the point of discrimination. It’s important to remember that it is illegal to discriminate against any applicant based on their national origin, race, color, religion, age, sex, disability or genetic information.

An example of employment discrimination may be an employer who chooses to hire only American citizens. Unless U.S. citizenship is required for a specific position by law, regulation, executive order or federal, state or local government contract, jobs must not be limited only to U.S. Citizens.

Also, keeping copies of an employee’s documentation (showing that they are an alien authorized to work in the United States) can be a violation of anti-discrimination laws—unless you maintain the same documentation for all employees. Singling out any one person qualifies as discrimination.

There’s one more blog post coming up in this series, but if you’d like a handy resource including all five tips, feel free to download our complimentary guide today.

Now, we’d like to know: Do you feel that the regulations regarding employment discrimination are easy to understand?

We’re continuing our series about common I-9 mistakes with a tip that focuses on record-keeping—specifically, how long employee I=9 forms should be retained. Managing employee documentation and I-9 forms is an important part of the compliance process, but many employers are confused about how long they should retain employee records and if it’s acceptable to discard records after an employee no longer works for the company.

Tip #2: Retain your I-9 records.

So how long are you required to maintain an employee’s I-9 form? The answer is: you must maintain an employee’s I-9 form either 3 years after the date of hire or one year after the date that employment is terminated—whichever is later.

It sounds simple enough, but failing to maintain records in this way can be a serious violation. According to the U.S. Citizenship and Immigration Services Handbook for Employers:

“If an employer’s action or inaction result in the alteration, loss, or erasure of electronic records, and the employer knew, or reasonably should have known, that the action or inaction could have that effect, the employers is in violation of section 274A(b)(3) of the INA (8 CFR Part 274a.2(g)(2)).”

Many employers simply opt to maintain all employee records on a permanent basis—that approach will work too, but it’s not a practical solution for everyone. Just make it a rule to follow the regulations put forward by the government in order to maintain compliance.

If you don’t want to wait for our next blog posts and would like to read all five of our helpful tips to avoid common I-9 mistakes, feel free to download our complimentary guide now!

We’re curious: Do you keep your employee records only as long as necessary, or do you retain them on a permanent basis?

A bill approved by the Tennessee Legislature and expected to be signed by the governor will strengthen incentives for Tennessee employers to use the federal "E-Verify" employee verification system to bar illegal immigrants from obtaining legal employment within the state. E-Verify is a Department of Homeland Security program available over the Internet and administered in tandem with the Social Security Administration. The Tennessee Lawful Employment Act (TLEA), which covers newly hired employees, will take effect January 1, 2012.

In addition to state and local governments and agencies within Tennessee, private-sector employers with more than 499 employees will fall immediately under the new provisions in January; companies with between 200 and 499 employees will be covered by July 1, 2012; and all businesses staffed by six or more employees will be covered beginning January 1, 2013. Employers with fewer than six employees are exempt.

Affected employers will be required to either choose the E-Verify system or to gather state-approved documentation from prospective workers. The documentation may include a current U.S. passport; state-issued driver's license or non-driver's identification card; official birth certificate; certificate of naturalization; permanent resident card; work authorization; or certain other forms of identification. The allowed documentation under the TLEA will differ from current I-9 verification requirements only in that copies of the documents must be retained by the employer. This document retention is not required by the federal Immigrant Reform and Control Act.

Consistent with the new legislation and with federal law, employers who opt into the E-Verify system must apply it without exception to all new hires; it will not be possible to alternate between verification methods. Employers lacking Internet access will be permitted to use the Tennessee Department of Labor and Workforce Development (DoLWD) as their agent for employee registration and verification. Limited "safe harbor" protections are available for employers who have opted for E-Verify.

A provision in the law empowers lawful residents of Tennessee or federal agents to file complaints at the DoLWD against allegedly infringing employers. Older provisions have authorized only local or state officials to file such complaints. The DoLWD will investigate credible claims that an employer has violated the law by hiring ineligible persons.

An employer failing to follow the law will be subject to a minimum penalty of $1,000 for a first offense, rising another $500 for each additional employee or non-employee over the first for whom the employer has neglected to collect and maintain satisfactory documentation; a second offense will incur a minimum penalty of $2,000, rising another $1,000 for each additional violation. A third offense will increase the minimum penalty to $5,000, with $2,500 more for each additional violation. A non-employee is defined as any individual paid by the employer for independent contractor services.

Under current law, employers found in violation might temporarily or permanently lose their business licenses, depending upon the number of offenses committed within a three-year period.

If your company is selected for an administrative inspection, you will probably receive the NOI (Notice of Inspection) through a personal visit by an ICE agent. The inspection will determine your company's compliance with the Immigration Reform and Control Act of 1986 along with other immigration laws. At this point you will have three business days to gather and produce all documentation. You will be required to produce Form I-9s for your current employees and, in some cases, for former employees, as well. There is also supplemental documentation that may be requested. The key to successfully handling the inspection is preparation and organization.

When you first receive your NOI, begin by gathering all documentation. The agent will usually provide a list of what documentation ICE is requesting. Of course, it will list Form I-9, but it may also include a copy of your payroll, a list of current employees and business licenses. A Special Agent in Charge can also ask for Social Security no-match letters, lists of managers and copies of company compliance policies. If you feel you won't meet the deadline, you can request a delay. It might even be best to retain a document management service which is experienced in immigration law. A service can assess your compliance before the inspection and prevent issues from arising.

When all the documentation is gathered, a Forensic Auditor within ICE will inspect it. If problems are found, the auditor will determine to which category they belong. Technical and procedural violations are minor and an employer will be give 10 business days to correct them. Substantive violations are much more serious and there is not opportunity provided for correction. Substantive violations include missing document numbers and signatures. Substantive violations don't always have to stay that way, however. If the company or its representative can show that documents were, in fact, maintained, but, perhaps incorrectly, then the violation may be reduced to a technical violation.

Now, if you and your company have knowingly hired employees that are undocumented or with inadequate documentation, you will be sought out and fined. You may even face criminal prosecution. Immigration law is flaunted only at great peril.

On the other hand, companies should not suffer punishment when they make mistakes even after good faith efforts at compliance. Given the high bar set for compliance most companies would do well to contract with a compliance specialist such as I-9Compliance.com to assist them in managing documentation. I-9Compliance.com's secure web-based I9 system integrates with the federally mandated E-Verify system avoiding costly violations.

Employers who request unnecessary documentations from employees who are permanent residents may be guilty of breaching I-9 compliance and may be at risks of discrimination lawsuits.

In 2010, a renowned vacuum manufacturer found out the hard way that requesting its permanent resident employees to produce documentation as proof of their statuses after their green cards have expired was indeed a risky move. According to the Immigration and Nationality Act (INA), all employees should be treated alike whether they are citizens or permanent residents.

Faced with damaging discrimination allegations, the manufacturer finally settled its dispute with the Department of Justice and agreed to extend civil penalties to the plaintiff, conduct employee training sessions on Form I-9 as well as to submit annual reports to the Department of Justice over a specified period.

I-9 Compliance is a crucial element in human resources management and like tax audits, should be taken seriously. If employers are found guilty of not adhering to I-9 compliance practices, they may be subject to fines and penalties based on government misconduct as well as suffer reputation losses.

However, the current political and economic climate in America requires all employers to verify the legal statuses of their employees. After all, an employer that hires employees who are not legally eligible to work in the country is also guilty of breaking the law. With these considerations, employers should take all measures to adhere to I-9 compliance practices that help employers verify the statuses of their employees while reducing their risk of discrimination lawsuit.

The first thing employers should avoid is to dictate the type of documents employees should submit in order to proof their legal statuses. There are various official documents a permanent resident or authorized alien can use as proof of their statuses in the country. Therefore, by insisting that they submit a particular document may be viewed as a discriminatory act on the part of an employer.

Another aspect of Form I-9 non-compliance is when employers request for excessive documents that may not be necessary according to I-9 requirements. Employers who demand the proof of additional documents that are above the requirements of the law may be at high risks of facing discrimination lawsuits.

Employers who request for employees to re-validate their statuses after their green cards have expired are also at risk of discrimination allegations. According to Form I-9 and INA regulations, employees who are permanent residents are under no obligation to re-validate their statuses to their employers; employers who ask for them may be held liable for differential treatment.

Most discrimination allegations are borne out of misunderstanding or miscommunication between the employer and employees. Therefore, employers should address the issue by educating and informing their employees through Form I-9 training in order to allay any misunderstanding that may occur about I-9 compliance matters.

Finally, employers should consider the advantage of utilizing electronic administration of I-9 practices. The electronic system automatically sends prompt alerts and conveys the guidelines clearly to employees according to INA’s requirements so that they are aware about the importance of I-9 compliance.