One Way Arkansas Employers Can Prepare for a Trump Administration

Donald Trump’s victory in November may have generated uncertainty and questions on what to expect. But there is one area in which the President-elect has been clear and everyone recognizes is slated for change: immigration. While Trump’s proposal for “an impenetrable wall” along the southern border has garnered the most attention, his other immigration policies likely will have a more direct and immediate impact for employers. As an Arkansas employer, you may be thinking, “Well, I don’t have any foreign workers, so changes in immigration policy won’t affect me, right?” Wrong. Trump has consistently stated that he wants to deter illegal immigration by “turning off the jobs and benefits magnet” that attracts foreign workers. In other words, he wants to crack down on businesses that employ individuals without work authorization. Practically speaking, this likely means more worksite-enforcement visits from Immigrations and Customs Enforcement (ICE) to check whether there are workers employed without work authorization. Such visits commonly occur by ICE agents who arrive unannounced (or with very little notice) seeking to audit the company’s I-9 forms. To accomplish his goal of increased enforcement, Trump has proposed tripling the number of ICE agents. Trump has also suggested that E-Verify should be mandatory for all employers. But keep in mind that E-Verify is separate from Form I-9; it does not replace it. In short, employers need to be prepared for an increase in I-9 audits by a beefed-up ICE agency. During an ICE audit, employers can find themselves in trouble not only if they have unauthorized workers, but (more commonly) because they did not properly prepare or maintain their I-9 forms for each employee. And penalties can be steep – fines generally start around $200 and go up to several thousand dollars per offense. In 2015, a California company was fined over $600,000 because it failed to properly complete I-9 forms for its employees. So what should employers do to prepare for a possible audit? Like most things, you need to prepare. You definitely do not want to wait until ICE is on-site demanding to see all of your I-9 forms. Therefore, employers would be wise to conduct an internal I-9 audit to identify and correct potential problems now. In fact, an annual internal I-9 audit is on ICE’s list of “Best Employment Practices.” If you need another reason to conduct an internal audit, keep in mind that you will be given a safe harbor if ICE discovers an unauthorized worker, but only if you have properly prepared and maintained your I-9 forms. Unfortunately, self audit can create more problems when employers choose to perform Neemah Aaron Esmaeilpour is a labor & employment attorney at Wright Lindsey Jennings who represents employers and professionals in a variety of employment matters. His areas of practice include discrimination, minimum wage and overtime, employee leave, employment contracts, severance agreements, covenants not to compete, unemployment claims and EEOC/ DOL investigations. ABOUT THE AUTHOR One Way Arkansas Employers Can Prepare for a Trump Administration Hear more from Neemah Esmaeilpour at the 2017 Human Resources Conference!

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