Missouri Association of School Business Officials (MoASBO) Business Support Workshop November 9, 2009 The Resort at Port Arrowhead Lake Ozark, MO Melanie Gurley Keeney, Esq. Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. firstname.lastname@example.org (314) 880-3611 Sources of Employment Verification Obligations Federal Obligations IRCA, I-9 Regulations Executive Order 13465 and New Regulations for Federal Contractors Delayed effective date September 8, 2009 New State Obligations Missouri House Bill 1549 Effective January 1, 2009 Mandates E-Verify for Public School Districts IRCA –Why do you care? Immigration Reform and Control Act of 1986 Employers have Employment Verification Obligations for all employees hired after November 6, 1986 Form I-9 – Is your District completing the Form? If yes, are you completing it correctly? Who are the Key Players? U.S. Department of Homeland Security (DHS) U.S. Citizenship Immigration and U.S. Customs and Immigration Customs and Border Services (USCIS) Enforcement (ICE) Protection (CBP) What are the Key Terms? I-9 Form – Old way for government to police unauthorized employment – new Form in effect April 3, 2009 E-Verify – Internet based system where districts interact with DHS electronically regarding employment eligibility of employees What are the Key Terms? Citizen National Lawful Permanent Resident (Green Card Holder) Alien Authorized to Work Temporarily- Students, Temporary Workers (H, L, TN, etc.) Why Do You Care??? Consequences of Hiring Unauthorized Aliens Criminal Administrative Debarment Prosecution Sanction Felony and Hiring Violations Prohibits Federal Misdemeanor $375-$16,000 Contracts 1-3 years Imprisonment, Paperwork Violations Enacted by Fines and $110-$1,100 Executive Order Forfeitures on 02/13/1996 New I-9 Form (Rev. 08/07/2009) Only unexpired documents acceptable. Changes in acceptable identity documents. Section 1 separates “citizens” and “noncitizen nationals.” What do you do if you need to re-verify an employee, given the change in Form? Initiating the I-9 Process Section 1 of Form I-9 When to complete By whom? Key issues What does it mean to be a citizen/national, lawful permanent, resident, or alien authorized to work. How to fix errors in Section 1. District Obligations Completion of Section 2 of Form I-9 Column A – One document OR Column B – One document AND Column C – One document Over-documenting Date of Hire issues Fixes I-9 Document Issues Receipts Copies Certification regarding review of documents Should you keep copies of documents? Where do you retain the documents? How long do you retain the I-9s? District Obligations Section 3 When does Section 3 (Re-Verification) apply? Do you really have to complete Section 3 for name changes? How is section 2 completed? What if you rehire multiple times? Intermittent employees Down and Dirty Questions What if we have never completed I-9s? What if we have I-9s, but they are terrible and a bunch of the employees are no longer with the District? What is the District’s real exposure? Am I going to jail? Avoiding Penalties Audit your I-9s Depending on size of district – random or alphabetical How far back do you go? Can you fix your I-9 errors? Which errors are ―fixable?‖ Which errors are likely to get you a fine? Can you back-date? NEVER!!!! Avoiding Penalties Have the person in charge of I-9s and E- Verify actually read the Handbooks! Spot check his/her work semi-annually or at some other regular interval. Create a checklist at time of hire that includes I-9 documentation and instructions for E-Verify. Avoiding Penalties Do not discriminate! Do you fail to hire someone because they look foreign! Do not use the I-9 or E-Verify to pre- screen! Do not ask questions on your application or during interviews that seek to elicit someone’s citizenship status! Avoiding Penalties If ICE comes knocking, and your District is getting an audit, call counsel immediately! Prepare for the audit! I-9 Review and Correction Prepare for ICE interviews Estimate exposure E-Verify: Status Update E-Verify and House Bill 1549 Public Employers All public employers must enroll and actively participate in E-Verify beginning January 1, 2009 Public employers include every department, agency, or instrumentality of the State or political subdivision of the State No employers shall knowingly employ, hire for employment or continue to employ an unauthorized alien. Missouri Law House Bill 1549 effective January 1, 2009. Emergency State Rules effective March 12, 2009. Final State Regulations effective August 30, 2009. E-Verify Basics – Getting Started What do you have to do? Decide who will be in charge Register online and execute Memorandum of Understanding (―MOU‖) Read program manual, posters, training materials, do the tutorial E-Verify Basics What are the ramifications if my district hasn’t registered yet? Fines/ Penalties? Status of State Regulations – there are none! Role of Attorney General’s Office E-Verify– When??? When do you E-verify? Pre-offer? Post offer? Within 3 days after hire? No later than 3 days after employee starts work? Whenever you get time. Who the heck cares? E-Verify– When?? If employer fails to complete the E-Verify process within 3 days, employer MUST note the reason for the delay and attach that reason to the Form I-9. Case Verification Number – Employer MUST write the Case Verification Number on the employee’s I-9 form or print the Case Details page and attach it to the I-9. E-Verify Notice You must post the 2 posters on E-Verify Recommend that you include a statement on District’s employment application Notice to contractors Notice in RFPs Documents for E-Verify Employee must provide his/her Social Security Number for E-Verify purposes. Employment Authorization Documents ―Green Cards‖ Copies How does E-Verify Work Inputting the information What are possible responses? Employment verified Tentative SSA Nonconfirmation (TNC) DHS Tentative Nonconfirmation (TNC) Final Nonconfirmation SSA and DHS TNCs Notify employee of TNCs ASAP! Print and provide the Notice regarding ―contest‖ of TNC. If employee does not contest, what do you do? If employee contests, what do you do? You may NOT take action against the employee during this time. Employee has 8 Federal work days to initiate resolution. File copy of SSA/ DHS referral letter with I-9 form. State Contracts No business entity or employer shall knowingly employ, hire for employment, or continue to employ an unauthorized alien to perform work within the state of Missouri. Public Employers All public employers must enroll and actively participate in E-Verify beginning January 1, 2009. Public employers include every department, agency, or instrumentality of the State or political subdivision of the State. State Contracts State Contracts As a condition for the award of any contract [for services] or grant in excess of $5,000 by the State, or by any political subdivision of the State to a business entity, or for any business entity receiving a state- administered or subsidized tax credit, tax abatement or loan from the State. State Contracts State Contracts Does this apply to all contracts or contracts for services? Code of State Regulations: Notapplicable to business entities that merely provides goods or products to the state or a political subdivision with no services State Contractors The entity must execute documentation (including sworn affidavit) verifying enrollment and participation in E-Verify for employees working on contracted services. Every business entity must sign an affidavit affirming that it does not violate the legal prohibition on employing unauthorized aliens in connection with the contracted services. State Contractors The entity must execute documentation (including sworn affidavit) verifying enrollment and participation in E-Verify for employees working on contracted services. Every business entity must sign an affidavit affirming that it does not violate the legal prohibition on employing unauthorized aliens in connection with the contracted services. Contracts – Real Life Issues What if you had a contract for construction that was entered into prior to September 8, 2009, but the work is being done post September 8th? Is the District required to rebid? Contracts—Real Life Examples Do you have to put special language in an RFP for services if the amount is not specified in a contract? What about when the district is hiring accounting firms, architectural firms, bank services? Missouri State Contractors State Contracts, Violations First violation, where the covered business entity employs unauthorized aliens: The business entity is in breach of contract State may terminate the contract and suspend or debar the business entity from doing business with the State for 3 years. Upon contract termination, the State may withhold up to 25% of the total amount due to the business entity. Second or subsequent violations, the State may permanently suspend or debar the business entity from doing business with the State and withhold up to 25% of the total amount due to the business entity. OSHA Requirement Public Works (effective August 28, 2009) Contractors on public works projects must provide a 10-hour OSHA construction safety program for on-site employees. All employees are required to complete the program within 60 days of beginning work on construction project. How do you handle this? Is this your responsibility? Federal Form 1099 Requirement Employers who employ 5 or more employees, ―shall, if applicable, submit federal Form 1099 miscellaneous forms to the Missouri Department of Revenue within the timelines established.‖ Penalties of not more than $200 for each time the employer fails to submit the information on or after the 5th occurrence.
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