By G. Phillip Shuler

In light of the country's recently issued heightened terrorism alert and on the heels of the indictments handed down in Baton Rouge to more than 70 undocumented aliens who allegedly used fake social security cards to obtain work in local chemical and industrial plants, it is now more important than ever to make sure that your employees are who they say they are and that they are legally working in the United States.

The federal government's Employment Eligibility Verification form, commonly known as the I-9, is where employers should turn to find the answers to these questions.

While appearing simple on its face, the I-9 form is and can be rather complex. Indeed, errors made on the I-9 can be very costly for employers. Both the Immigration and Naturalization Service and the Department of Labor audit I-9 compliance. Penalties for noncompliance and lack of proper documentation can range from $100 to $1,000 per worker. And, if an employer intentionally hires an unauthorized alien, the fines imposed can reach up to $10,000 per worker.

The following may provide guidance to employers in their effort to avoid or at least sidestep legal problems that could arise when alien workers, legal or illegal, are involved:

• Require all new employees to complete and sign the first section of the I-9 form on their very first day of work.
  
  
• Do not have an applicant for employment complete an I-9. The I-9 form should not be provided to the individual until (s)he has been extended a job offer.
  
  
• Carefully review the documentation provided by the employee to make sure that the documents are acceptable forms of identification and are genuine.
  
  
• Let the employee choose the documents (s)he provides. Do not ask for specific documents or for more documentation than required by the I-9.
  
  
• Establish a consistent procedure for I-9 form completion and be sure to adequately educate/train your hiring managers accordingly.
  
  
• Do not consider the expiration date of I-9 documentation provided by the employee when making hiring, promotion or firing decisions.
  
  
• Keep copies of all I-9 documentation provided by the employee.
  
  
• Establish a system that reminds you to follow-up on expiring documents and notify employees that they need to re-verify their documentation 90 days before their current documents expire.
  
  
• Retain I-9 forms and copies of the employee's documentation for three years after the date of hire or one year after termination, whichever occurs last.
  
  
• Do not put the I-9 form in an employee's personnel file. It should be kept in a separate file to protect against potential discrimination claims.

Manufacturer escapes negligence suit by employee of subcontractor. A Louisiana federal district court recently dismissed a negligence lawsuit filed by two maintenance workers against the chemical manufacturing company that contracted with their employer. See, Brown v. BASF Corp., Civil Action NO. 02-2316, Eastern District of Louisiana, 1/14/03. The court ruled that, although the workers were employed by a subcontractor, they were the statutory employees of the manufacturer because they performed work that was essential to the manufacturer's business operations.

The workers at issue performed maintenance and other types of work in the manufacturer's existing facility. The court concluded that the work being performed by the subcontractor employees was part of the manufacturer's trade, business and/or occupation such that they were deemed to be the statutory employees of the manufacturer and their only remedy against the manufacturer for work-related injuries was under the state's workers' compensation laws.

Significantly, the court held that the existence of a written contract between the manufacturer and the subcontractor gave rise to a presumption that the work being performed by the workers was integral to the manufacturer's business.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.