LEGAL EASE

These steps should help you prove you're I-9 compliant.

With the risk of federal jail time and six-figure fines, it's time to examine your company's policies and procedures relating to both employment eligibility and independent contractors. Legal and human resources experts recommend the following to maintain compliance:

Check your contracts. Require contractors to comply with all local, state, and federal laws, including verification of eligibility to work in the United States and collection of federal I-9 Employment Eligibility Verification forms. Former prosecutor and immigration attorney Rebekah Poston recommends that your contract state subs must complete I-9 forms within three days of hire, retain I-9 documentation for three years after an employee is hired or a year after termination, in accordance with federal law, and that they not destroy records during those time frames.

Hire true subs. Make sure your subs are truly independent contractors. It's critical because employers are only required to verify the status of their own employees. The tests to prove independent contractor status differ for immigration, fair labor laws, and the IRS, but in general, they center on whether the sub has other customers; if he's paid by the job and not by the hour; if he provides his own tools; and if he is “subject to control only as to the result,” Poston says, which means that you can dictate standards of quality and when a job has to be finished, but you don't tell the sub how to get the job done, how many people to bring, what type of tools to use, or how many hours a day to spend on the job. As a separate business, that's the sub's decision to make. “If you meet most of those, you have a defense for not doing I-9s for those subs.” Contact the IRS for its criteria for determining independent contractor status.

Maintain arm's length. Instruct your superintendents to not directly supervise contractors' crews. “Don't exercise the human tendency to butt into a relationship that's not yours,” says Angelo Paparelli, president of the Academy of Business Immigration Lawyers. “Only deal with one person—the contractor. Don't dictate how to staff the project with respect to particular individuals. It's about maintaining an arm's length relationship.”

Be alert. Establish a policy that jobsite superintendents are to report anything suspicious to senior management. For example, if there's a rumor of federal raids on jobsites and half of your workforce doesn't show up, it's safe to assume most of them are undocumented. “That needs to be reported back up the line to exercise some appropriate reaction,” Poston says. “You have to do things to show you're responsible.”

Post the rules. Put signage at every gate on your jobsite saying that all contractors are required to verify their employees' work eligibility.

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