Missouri Employment Application by wvg13389

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									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.
                mkeeney@tuethkeeney.com
                     (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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