[Editor’s Note: today’s post was written by our guest blogger Melinda McAfee, Esq., Vice President – Legal, Abercrombie & Fitch, Tracker I-9 client since 2010.]
Nothing tests your company’s best practices like an ICE audit. Any company that has been through a large scale ICE audit will come out of the experience with lessons learned. Converting these lessons learned into best practices can and will help you survive future ICE audits relatively unscathed. Below are a few of the “best practices” lessons learned that any large retailer or similar employer can benefit from.
Best Practice #1: Develop and Implement a Regular Audit Process
The most important lesson that any employer can learn from going through an ICE audit is the importance of a regular audit process for I-9 compliance. This is especially true with respect to electronic I-9s, which are susceptible to the vagaries of technology. The risk when errors occur is much higher with electronic I-9s where technological problems can affect hundreds or thousands of I-9s at once, and could subject a Company who has acted in good faith to disproportionate fines. Developing an audit program that regularly reviews both the behind the scenes working of your electronic I-9 system (i.e., database storage, stability and security) and the front end product (i.e., correct completion of the I-9) is essential.
Best Practice #2: Make it Fail Safe
There are numerous error types that are possible on an I-9 form, any one of which can result in a fine from an ICE audit. At a minimum, any electronic I-9 system must provide automatic error-checking. Ideally, the system should prevent I-9s from being submitted with invalid input or incomplete information. For example, your electronic I-9 software should prohibit the form from being submitted without all the required fields completed. Other error protections include prohibiting the entry of expired documents, date and number formatting checks to prevent typographical errors, and protections to prevent accidental over-documentation and subsequent accusations of discriminatory I-9 practices.
Best Practice #3: Keep it Simple
I-9 and E-Verify processing can be high risk, but is usually a low priority for retail managers, whose focus is, and should be, on running the business. Along with the fail safe protections discussed above, the electronic I-9 system and interface should be as simple to use as possible. Managers need to be able to do the following without becoming confused or distracted by too many extraneous features in your electronic I-9 system:
1. Create an I-9 record
2. See a list of every record in process, and
3. See the employees who need to be E-Verified.
Avoid putting extensive reporting and searching tools on your local interface. Make sure that the instructions and screens that local managers see are clear and concise, walking them step by step through the process. Save the bells and whistles for your Corporate Office HR professionals and auditors.
Best Practice #4: An Integrated Solution
If your Company uses an applicant tracking system (ATS), it is possible to integrate the electronic I-9 software with your ATS. This can provide another fail safe to ensure that I-9s are completed at or prior to the hire process, requiring the I-9 to be completed before the individual can hit the sales floor. For retailers with a large part-time workforce that may not work every day, this can ensure compliance with the mandatory I-9 completion time frame. Integrating the electronic I-9 system with the ATS also helps “Keep It Simple” because Section 1 of the I-9 can be pre-populated with information provided by the employee during the application process, requiring only the employee’s review, correction and signature.
Likewise, using Single Sign On simplifies the electronic I-9 system and makes security easier to control. Managers can sign on to the Point of Sale system and be authenticated at sign on, which will provide them access to the electronic I-9 system, ATS and the electronic hiring system. This prevents the manager from having to reauthenticate multiple times in order to process a new hire, complete an I-9 and initiate E-Verify.
Best Practice #5: Portable Authentication for Substitute Managers
Large retailers in cities with multiple stores often need to borrow or exchange managers from one worksite to another to cover vacations, sick days and turnover. This requires an I-9 system that is not only easy to use, but also enables portability of system access. Creating temporary access roles for a new user every time a manager goes to a new store creates a burden on IT staff, creates login and security complexities, and risks managers being unable to log into and use the system. By integrating your I-9 software with your other systems, the I-9 software can automatically permit access for managers to the specific stores at which they are scheduled to work, and then disable that access when they transfer to a different location.
Best Practice #6: Support Seasonal and Under-Age-18 Hiring
Retailers, food service and hospitality industries thrive on hiring seasonal, temporary and under-age-18 employees. The electronic I-9 system used by such employers must simplify the I-9 and E-Verify complexities inherent for these types of employees. For example, if an employee is working for three days or less, the three-day grace period to sign Section 2 does not apply and you cannot accept a receipt in lieu of an original Section 2 document. Your electronic I-9 system should automatically enforce compliance with these special rules.
By keeping these six best practices in mind, multi-worksite organizations in the retail or similar industries can help ensure the best compliance with I-9 and E-Verify and increase their chances of surviving an ICE audit with minimal impact to the business.
Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.
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