Verifying a Transient Workforce in the Construction Industry

By Richard A. Gump, Jr. (Shareholder) and Lauren B. Allen (Associate) of the Law Offices of Richard A. Gump, Jr., 972-386-9544, www.rickgump.com

As the construction industry claws its way out of the great recession, employers need to be acutely aware of on-going requirements that could pose a threat to this reacquired stability.  Without a verified workforce, a company would be useless.

The construction industry revolves around a transient workforce and must adapt to ever-changing worksite locations. When headquarters is based in a different location than the worksite, employers must ensure that correct employment verification processes are not abandoned for the sake of convenience.

The Department of Homeland Security’s Immigration and Customs Enforcement (ICE) continues to significantly increase its number of audits.  In the past four years alone more than 10,000 employers have been audited.  This makes it imperative for employers to verify their workforce. While this may pose no concern for those already established in their culture of compliance, it is essential for all employers to take a second glance at their company’s protocols.

The most common error when verifying a mobile workforce involves Section 2 of the Form I-9. In most circumstances, it is the employer’s responsibility to complete Section 2 within three business days of the employee’s first day of employment. Through this certification process, the employer or the employer’s agent is saddled with the responsibility of inspecting the List A, or List B and List C supporting documents. However, if this employer is not in the same location as the new hire then a fairly straight-forward I-9 process quickly transforms into a complex scenario full of hidden violations.

Violations are most often are caused by technology which allows many companies to compete on a global scale.  It would make perfect sense to use technological measures in order to verify a remote hire by having them take a picture of their supporting documents with a cellphone and email or text it to the employer; use Skype; or make a copy and scan it to headquarters. While all options make sense, they are direct Form I-9 violations and employers will be held accountable for them. This is because Section 2 requires the employer or the employer’s agent to physically examine each original document to ensure its genuineness. Failing to do otherwise can result in significant fines.  In 2012, worksite I-9 audit fines were reported at nearly $13 million.

The answer to this frustrating problem involves some degree of creativity and a mandatory company procedure regarding the verification of remote hires. One option is to ensure that an I-9 trained employer representative or agent (e.g. notary public) is available at each worksite location to verify every new hire’s employment authorization. This would allow for the physical inspection of the supporting documents.  Correct I-9 training is key to this as the employer, and potentially the agent, will be liable for the actions taken.

The government has taken note of the difficulties employers face when attempting to verify a mobile workforce, but has taken no action. This is driving a current effort to consider the utilization of post offices to assist in Section 2 completion.

Bottom line: employers must have a plan of action for verifying their mobile workforce, which must include:

• Correct training
• Physical examination of supporting documents
• Periodic auditing practices

With the number of ICE audits increasing annually, the need to develop and maintain ongoing compliance measures is key towards avoiding costly fines. And as employees become more mobile, developing an acute awareness of acceptable employment verification processes will only ensure continued success in an employer’s remotely linked workforce.

Rick Gump, Jr. is the shareholder of the Law Offices of Richard A. Gump, Jr. which concentrates on worksite compliance and business employment visas. Mr. Gump has been practicing for 40 years, and focuses his practice on the human resources area of international law, with an emphasis on immigration and authorized employment. rick@rickgump.com

Lauren Allen is an attorney at the Law Offices of Richard A. Gump, Jr.Her practice involves assisting employers with worksite compliance issues to minimize potential liability associated with employment verification. lauren@rickgump.com