How Should You Respond to Potentially False I-9 Documentation?

At present, the federal government expects companies to carefully examine all I-9 documents presented by job applicants and to ask questions about required paperwork that looks like it may have been altered. Once you receive proper documents that look valid, you must keep your copy of the completed I-9 form on file, ready to share it with ICE (Immigration and Customs Enforcement) upon request. In some cases, you may be given only three days’ notice to produce these documents for all your employees.

To help employers fulfill their duties, ICE provides general guidelines that describe how all I-9 document reviews should be handled. These guidelines are further referenced below, along with topics you should address with your human resource staff to help them avoid accidentally discriminating against applicants and employees while simply trying to obtain fully updated, accurate documents.

What federal law established the need to obtain I-9 documents from job applicants?

Congress passed the Immigration Reform and Control Act (IRCA) back in 1986. It requires employers to obtain job applicant documents that validate each person’s right to work in this country. This task is handled by fully completing a Form I-9 document for each job applicant. To help establish their legal status, applicants can produce such items as:  a driver’s license, a Permanent Resident Card, a US passport, a birth certificate and a Social Security card.

Can some I-9 documents be acceptable even when they initially look questionable?

The simple answer to that question is “Yes.” However, you should always keep notes in your file concerning any odd documents that you first believed might be false – and keep a copy of them. As ICE notes on its website, there are times when a worker may show you documents indicating different last names – and that may be acceptable if the job applicant can provide you with a reasonable explanation for the varied listings.

While employers must be respectful and open-minded while handling required I-9 tasks, they should be acting in agreement with previously established, written employee guidelines clearly noting that all new hires and established employees can be fired for providing any false job applicant documents. When you haven’t already created such written guidelines and acceptable standards of employee conduct, you may later find yourself accused of discriminating against an applicant or employee based upon his or her immigrant (or special ethnic) status.

This type of scenario often unfolds when an employee informs you after being hired that one or more documents given to you before being hired was fraudulent or invalid. This tends to occur when the employee is trying to provide you with newly updated, valid documents.

This specific type of issue was presented to the Department of Justice (DOJ) back in 2015. Unfortunately, instead of issuing an advisory opinion, the DOJ simply noted that employers should already be prepared to handle these types of issues — based on established employee conduct guidelines. Otherwise, they risk being sued for one of at least four employment-related forms of discrimination.

Is it true that some employers have been heavily fined for I-9 violations?

Yes. One of the largest fines recently imposed by the Office of the Chief Administrative Hearing Officer (OCAHO) involving I-9 irregularities was against Hartmann Studios. That company was required (in July of 2015) to pay $600,000 in civil penalties. (That amount had been reduced from the original penalty sought of $812,665.) When Hartmann was undergoing a new inspection back in 2011, the company employed over 700 workers.

While that large sum of money is quite high, it’s important to recognize that Hartmann Studios was unable to provide any I-9s for some of its employees who had been terminated and needed an extension of time to produce documents for others.

What steps can our office (or company) take now, to make sure were fully complying with all current I-9 document guidelines?

If you haven’t already done so, give serious thought to signing up for the US government’s
E-Verify program that can help you properly process all your I-9 documents. By visiting this government website, you can learn more about how this program works. Your usage of this service may help establish your good-faith attempt to properly handle all I-9 duties.

You may also want to ask your lawyer if you should require all newly hired (and established) employees to sign a form that clearly indicates their awareness that they may be immediately fired for their dishonesty if you ever learn that they’ve provided you with any fraudulent I-9 documents. If you do this, you’ll need to strictly apply this standard.

Please contact our Murray Lobb law office so we can answer any other questions you may have about properly handling all I-9 documents. We can also provide you with advice on drawing up a general employee handbook — that also fully alerts all employees to the possible consequences of supplying your company with fraudulent I-9 documents.

HB 1974 Provides Useful New Power of Attorney Provisions

The State Bar of Texas often promotes new legislation like HB 1974 that helps people more readily use probate statutes to benefit themselves. This new statute provides changes to durable powers of attorney (POA) that were supported by the Bar’s Real Estate, Probate and Trust Law Section. They became effective on September 1, 2017.

In broad terms, these new provisions (1) clarify certain legal presumptions involving durable powers of attorney, (2) broaden the types of powers that principals can give to designated agents and (3) define when a party can legally refuse to accept someone’s power of attorney.

Penalties for not accepting powers of attorney are also discussed since these documents must usually be accepted as valid (unless clear exceptions set forth in the new provisions are met.)

Legal Presumptions Supporting Texas POAs

  • When properly notarized and signed by the principal who created the document, a durable power of attorney (POA) naming an agent must be considered valid;
  • A POA drafted in another state must be considered valid (once it’s certain that it fully complies with the laws of the other state);
  • The recipient of a faxed, photocopied or emailed copy of a POA can rely upon it like the original without liability.

New Powers and More Agents Can Now More Easily Be Included in POAs

  • If the principal names co-agents, they can act independently of each other – unless the POA specifically forbids such activity;
  • New rights of survivorship can be created or changed by named agents – if this right is specifically set forth in the POA;
  • The designated POA can delegate certain expressly assigned authority to others;
  • An agent can create, terminate or make various changes to an inter vivos trust;
  • Rights of survivorship and certain beneficiary designations can be changed by an agent if the principal included them in the POA document.

Specific restrictions are also set forth regarding the new parties an agent can name when making certain POA changes – they are designed to prevent the agent from naming anyone who the agent already has a legal duty to support.

Limited Facts or Known Events That Can Justify Rejecting a POA

Although this new legislation clearly states that power of attorney documents should normally be accepted and that penalties can apply if this doesn’t occur – the new statutes do list numerous situations that can justify the rejection of a specific POA. Here are some of the many exceptions that can allow someone to reject a proffered POA.

  • The party being given the POA has reason to believe that an SAR (suspicious activity report) has been filed regarding the agent or principal;
  • The person hesitant to accept the POA is aware that a judicial proceeding has already begun that was initiated to determine the document’s validity;
  • A party has a “good faith” belief that the named agent has a criminal record based on financial crimes;
  • The party handed the POA believes in “good faith” that the principal is currently being abused in some manner by the named agent;
  • The party asked to accept the POA has received conflicting instructions from one or more agents named in that same document.

While this list isn’t intended to be comprehensive, it does set forth some of the new provisions justifying a person’s decision to reject a POA document. However, anyone who won’t accept a proffered POA must state this refusal in writing and give the specific reasons for rejecting it.

Since questions may always be raised regarding many powers of attorney, it’s wise to first speak with your Houston probate attorney when trying to decide whether to honor one that’s been tendered to you. Our firm is also prepared to draft any new POA that you may currently need.