Human Resources | February 2010 | By Staff

Expert Hiring Advice

Mark Reed is CEO of BMS, which offers consulting in hiring and I-9 compliance to quick-serve brands. He warns operators to watch for red flags and train managers to follow the law.

Personnel who make new hires should be educated on the government’s hiring laws.
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Q: It was a headache hiring for my first store, now I’m worried about hiring a new staff for my second unit. How can I ensure they’re authorized to work?

For many decades this industry has become dependent on an unauthorized workforce because there’s never been a consequence to it. Not only do you maintain a competitive workforce that way but also you maintain your competitive advantage. That has changed and that’s the big message.

When someone is opening a new restaurant, they need to look at a different labor pool if they want to protect themselves. There’s a tool that the government offers any employer. It’s called E-Verify, and it’s very simple to go online and get on the system. You have your employees fill out a form I-9, which all employees have to fill out, and it can run that information on that document against the government’s database. Then you’ll get a prompt response back authorizing the employment of the individual or not. In most cases, it authorizes it, but sometimes not. Even though E-Verify has its drawbacks, it demonstrates a good faith effort by the employer.

But employers need to use it with eyes wide open. It does not detect identity fraud if you have someone come in and claim to be a permanent resident and give an employer a immigration card, it’s very good at determining if those people are authorized to work. But if someone comes in claiming to be an American citizen and gives them a false identity, E-Verify in most cases will not detect identity fraud.

Keeping those I-9 forms is important. You have to have all of your I-9s on hand and available for inspection on demand for the Department of Homeland Security if they say they want to see them. The form has to be filled out correctly or operators can get fined. They can also get fined if they don’t have one at all or if it appears that they hired someone they shouldn’t have and knew better. They can be prosecuted for that. The government has really stepped up the consequences. The only tool provided to protect operators is E-Verify, and it’s flawed so the employer is left on their own to protect themselves.

So you need to protect yourself from hiring unauthorized workers, but be very careful of discrimination. What happens in fast-food restaurants is that maybe you have 1,000 stores, but the person who does the hiring is the manager of the store and you probably have about 15–20 people employed there. And the manager has no human-resources training so the first reaction is, “Oh no, another headache. This is something else that’s going to take away my attention from the operations of this store to do paper work.” And they say, “I know how I’m going to do this. I’m not going to hire any more Hispanics.”

Well, wrong. That can get you in as much trouble as hiring an unauthorized worker. They have to get smart about what the law is and how to fill out an I-9. If they do decide not to hire someone, they have to be able to articulate why they believe that the person presenting those documents is not authorized to work.

This is an exaggerated example, but let’s take a potential employee who doesn’t speak or write English, who hasn’t worked or gone to school in the U.S. before, and this is his first job. You look at his documents and see that one of the documents says it’s issued in North Carolina, but he’s never been in North Carolina. And then the social security number was originally issued in Puerto Rico, but he’s never been to Puerto Rico.

Those are big red flags that employers have chosen not to notice in the past. And what they need to do now is not just get the documents, they need to notice what you should notice. The form I-9 clearly states the documents that a potential employee can present, but you cannot ask for specific documents. You have to give them a job offer first, then they can present any documents as long as they’re listed options on the I-9 form. And they can’t ask for those documents again because that’s discrimination.

What employers basically should be doing is be aware of their vulnerability. They should be looking at hiring practices now to figure out if they’re sufficiently protected from hiring unauthorized workers and incurring fines, so that if they get inspected it’s not going to disrupt their operations. Because when they come in, they’ll traditionally be asking for all existing employees’ information and employees terminated over the last year. Depending on the size of the employer, though, there will be some variation.

Operators have to get smart about what the law is and how to fill out an I-9.

Employers are required to retain that I-9 for three years or one year after termination, whichever is longer. The government can ask for all those I-9s if they so desire. What typically will happen is if Immigration and Customs Enforcement (ice) sees a problem with one store, they will wonder if there’s a problem with another store [in your system]. What ICE is all about is criminal prosecutions. These notice of inspections, they believe, are going to allow them to identify employers who have been egregiously violating the law. If they see a pattern and practice in hiring unauthorized workers, they’re going to wonder if this is knowing conduct. If they can prove that people knew and hired anyway, they can criminally prosecute. They would rather put handcuffs on an employer than fine him.

You need to dedicate time to your hiring practices. There has to be a job application and it must be completed to include job history, and that information needs to be compared to the documents that the person presents. You need to ask: Is this a plausible story? And does this make any sense at all? That will protect most employers in 90 percent of the cases—if they just pay attention to doing that.

Companies should also train their staff on how to hire, especially if you have several stores in a system. What you don’t want to have happen is have one person doing hiring one way and another person doing it another way. The government will think if one has a problem that they have altered the hiring practice to allow them to continue to hire unauthorized workers, and that’s where you get into the criminal conduct.

So work toward uniform hiring practices, dedicate the time to training the people that are doing the hiring; there are ways to detect bad documents and there are ways of being able to tell whether documents are valid but not related to the person presenting them. That’s what employers are up against; they’re up against identity theft and the government is going to hold them responsible.