Staffing buyers looking to check the legal status of temporary workers by reviewing I-9 forms may be out of luck. The law does not allow staffing firms to pass along that documentation.
I-9s verify an employee’s eligibility to work in the US, and some say it’s common for managed service providers to ask for them. But there’s no legal basis to request such paperwork.
The issue arose last week during a presentation at the American Staffing Association’s Staffing Law Conference when attorney Helen Konrad of law firm McCandlish Holton cautioned staffing firm executives about forwarding I-9s.
“These documents can only be released to government agencies,” Konrad said. The forms cannot be provided to buyers even in a redacted format.
In addition, staffing suppliers cannot legally send E-Verify proof of employment authorization either, Konrad said. They can’t even send an E-Verify screen shot. Violation of E-Verify rules can lead to debarment from E-Verify for staffing suppliers and debarment from federal contracts
Other staffing industry legal experts agree providing such documents to buyers runs afoul of the regulation.
“Government rules forbidding staffing firms to share I-9 and E-Verify information with third parties make no exception for staffing customers,” said George Reardon, an attorney whose practice is focused on the staffing industry.
“In some future dispute, co-employers might argue for equal access to employee data, but nobody should want to be that test case,” Reardon said. “Customers should not want such access anyway, since it brings responsibility and exposure. Leaving this function solely with your supplier also highlights the supplier’s common law employer status under the Affordable Care Act. Instead of direct compliance monitoring, you can indirectly confirm your supplier’s compliance with immigration law by requiring a responsible officer of the supplier to periodically attest in writing that the records for employees assigned to you have been currently checked and are in compliance.”
Konrad said staffing suppliers facing such requests have to weigh the pros and cons. Pros include the fact such documents will satisfy the client and are easy to provide. The cons are increased exposure to government investigations. She said “document abuse penalties” can range $110 to $1,100 per I-9.
Complicating matters, staffing suppliers and MSPs likely won’t discuss how to handle I-9s during the initial contact phase, and Konrad said contracts rarely specify which documents must be provided. But one way staffing suppliers might get around the issue is to provide an “attestation” in lieu of actual documents, she said.
An attestation should confirm an I-9 form was completed for all employees on site; confirm all employees on site have valid employment authorization; and confirm that any employee with expiring employment authorizations has been scheduled for reverification and will be updated prior to expiration.
Attorney Diane Geller, a partner at Fox Rothschild LLP, said she suspects that requests for I-9s as well as background check and drug test results are going on a great deal in the industry.
Staffing firms could certify their workers are in compliance rather than supplying actual I-9 and e-Verify documentation; background search and drug test results might be shared if the staffing firm gets a well-crafted release from the candidate, Geller also said.
Staffing buyers’ concerns over legal status of temporary workers reached was stoked 10 years ago when Wal-Mart paid $11 million in a settlement for knowingly using contractors that hired illegal workers.
A consent decree in the case, Geller said, enjoined Walmart from directly or indirectly through independent contractors knowingly hiring or recruiting or continuing to employ illegal aliens; directed Walmart to establish a compliance program to verify that independent contractors are taking reasonable steps to comply with immigration laws; maintain a program of taking reasonable steps to ensure that all Walmart workers are authorized to work in the US and fully cooperate with federal law enforcement regarding the investigation of criminal activity in the employment of illegal aliens.