Employment Law for Texas Employers: Welcome to eVerify!

This blog has previously discussed the employer’s duty to avoid “illegal workers” by verifying that its employees are eligible to work in the United States. See http://texascommerciallaw.blogspot.com/2012/08/texas-employment-law-basics-for_27.html.

The U.S. Department of Homeland Security has created a free, online system to check on a prospective employee’s status: http://www.uscis.gov/e-verify.

However, this eVerify program does NOT replace the employer’s obligation to complete and retain a Form I-9 for each employee. Make sure to retain the required documents, whether in paper or electronic form, so that you can demonstrate compliance in the event of an audit.

Rather, eVerify is a cost-free method for employers to determine whether the information on their employee’s Form I-9 matches information contained in the databases of the U.S. Department of Homeland Security and the Social Security Administration.

Most employers are not required to use eVerify at this time. Federal mandates may occur during the congressional debates surrounding immigration reform, however. Employers should review their employment verification procedures periodically to ensure that they remain in compliance with all federal and Texas statutes.  

By:  Cynthia W. Veidt, cindy@lpvlaw.com

Texas Employment Law Basics for Employers: Avoiding Illegal Workers

You will be required to complete an I-9 form and other state-approved forms to report each new employee in Texas’ “new hire directory” (maintained by the Texas Workforce Commission) within twenty (20) days of that employee’s start date. This process will help ensure that your employees are eligible to work in the U.S., and is also used to track and collect social security, federal income taxes and other government-authorized deductions from that employee’s paychecks.

The confirmation process is usually pretty straightforward, but issues sometimes occur. For example, you’ve hired a new employee, but he or she refuses to disclose their social security number or claims not to have one. What should you, the new employer, do in this situation?

According to the U.S. Department of Homeland Security, you cannot legally require that the employee disclose their social security number (SSN). Although a social security card is the most common method of demonstrating that the employee is eligible to work in the United States, it is not the only method for proving eligibility.

This causes some problems for the new employer in Texas. You will be required to complete a “new hire” report form on which you must provide the employee’s SSN. Although there is little guidance from the various federal and state agencies, it appears that you may be able to avoid compliance issues by submitting an affidavit stating that the employee does not have an SSN or refuses to provide it.

You and the employee should each complete a Form P-1 (a privately-prepared form captioned the “Reasonable Cause Affidavit by Payor for Not Obtaining Payee’s Identifying Number”) which you can find via a quick internet search. Refusal by the employee to complete this form, in addition to his or her refusal to provide an SSN, may be grounds for termination. In addition, courts have stated that an employer is not required to hire someone who refuses to provide an SSN on his or her job application.

If this situation occurs, please consult with someone well versed in employment law to determine what rights and obligations/liabilities you may have as the new employer.

By: Cynthia W. Veidt, attorney