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Tighten I-9 practices in advance of new legislation

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in Employment Law,Firing,Hiring,HR Management,Human Resources

Issue: While Congress tries to hammer out the biggest immigration-law changes in decades, Homeland Security is already cracking down.

Risk: These developments will likely add new responsibilities and risks to your I-9 and visa practices.

Action: Don't wait for the law to pass. Now's the time to make sure your immigration records and practices are up to snuff.

Amid the backdrop of immigrant rallies, congressional wrangling and the largest-ever work site raid on illegal employees, immigration solidified itself in recent months as the top hot-button HR issue of 2006.

At press time, Congress was hotly debating an overhaul of the nation's immigration laws that could add to your duties and risk in policing immigration.

The House-passed bill focuses on border security and increased enforcement, subjecting illegal immigrants to deportation and employers of illegals to increased penalties. The Senate is considering a broader bill that includes a new temporary-worker program for illegals already in the country, plus creation of a new tamper-proof workplace verification ID card for foreign workers.

Our advice: Don't wait for Congress. Make sure your I-9 and visa policies and practices are in order now.

That's because the Department of Homeland Security (DHS) is going ahead with its own plan to tighten the reins on illegal immigration by cracking down on employers who hire illegal workers.

In late April, DHS raided IFCO Systems, a Houston-based manufacturer, arresting seven managers and apprehending more than 1,100 illegal workers. That's more than DHS apprehended in all raids last year.

Since then, DHS has carried out several smaller raids to make the point that "the status quo has changed," says DHS chief Michael Chertoff. "These enforcement actions demonstrate that this department has no patience for employers who tolerate or perpetuate a shadow economy. We intend to find employers who knowingly or recklessly hire unauthorized workers."

Chertoff says the IFCO case signals a new approach in workplace enforcement. Rather than fining employers for hiring illegals, it will file more criminal charges and seize assets.

Outlook: Don't panic. DHS will mostly target egregious violators who knowingly hire illegals as part of a core business strategy.

Still, employers—especially the ones most susceptible to raids (see box below)—should use this opportunity to solidify their immigration practices. The increased attention may, in fact, make it easier to gain a CEO's budget approval for a consultant's audit of I-9 records. For more on I-9 compliance, go to www.uscis.gov (click on Employer Information in right column)

Dealing with protest absences

The immigration debate sparked another HR issue: How should employers respond when employees skip work to attend political protests? Many employers had to deal with this problem as employees took unexcused absences to attend immigration-related protests and rallies.

Your quick reaction may be to fire such employees, but employment lawyers urge caution.

Employees' participation could be considered a legally protected activity under the National Labor Relations Act. Even if your organization isn't unionized, employees have the right to engage in concerted activities, including political protests that have a connection to workplace issues. That means firing employees who took the day off (or threatening to fire them) could be deemed an unfair labor practice.

Plus, you risk race or national-origin discrimination claims if you treat protesting employees differently than other employees who've skipped work in the past with unexcused absences.

So long as you treat all employees similarly under your attendance policies, you have a good defense against discrimination claims.

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