I 9 Audit of Temp Agencies
6352836
2 Posts
Our company has a standard quarterly spot audit of I 9 forms of our current temporary workers. We have been faced with the removal of several temporary workers at two of our field sites on two separate occassions in the last five years or so. Recently some of the temp. agencies have refused to allow our HR managers to spot check the I 9 documentation for the temporary workers they supply us stating that it violates privacy laws. Does anyone know if a company has the right to audit the I 9 documentation of their temporary workforce? Thanks!
Comments
I don't know that this will be much help....BUT....
Well, here is what it says directly on the I-9:
"Privacy Act Notice
The authority for collecting this information is the Immigration Reform and Control Act of 1986, Pub. L. 99-603 (8 USC 1324a).
This information is for employers to verify the eligibility of individuals for employment to preclude the unlawful hiring, or recruiting or referring for a fee, of aliens who are not authorized to work in the United States.
This information will be used by employers as a record of their basis for determining eligibility of an employee to work in the United States. The form will be kept by the employer and made available for inspection by officials of U.S. Immigration and Customs Enforcement, Department of Labor and Office of Special Counsel for Immigration Related Unfair Employment Practices"
Then it goes on to define employers as: "For the purpose of completing this form, the term "employer" means all employers including those recruiters and referrers for a fee who are agricultural associations, agricultural employers or farm labor contractors. "
You might also read through the I-9 Employer Handbook at: http://www.uscis.gov/files/nativedocuments/m-274.pdf that states:
"You DO NOT need to complete a Form I-9 for persons who are:
1. Hired before November 7, 1986, who are continuing in their employment and have a reasonable expectation of
employment at all times;
2. Employed for casual domestic work in a private home on a sporadic, irregular, or intermittent basis;
3. Independent contractors; or
4. Providing labor to you who are employed by a contractor providing contract services (e.g., employee leasing or temporary agencies).
NOTE: You cannot contract for the labor of an alien if you know the alien is not authorized to work in the United States."
It goes on to state " Q. Can I contract with someone to complete Form I-9 for my business?
A. Yes. You can contract with another person or business to verify employees’ identities and work eligibility and to complete Form I-9 for you.
However, you are still responsible for the contractor’s actions and are liable for any violations of the employer sanctions laws." in Question 36
I am not seeing any real prohibition of both the agency and the employer seeing the information. It doesn't sound like the employer is REQUIRED to get the information, but it does sound like they are still responsible for making sure their workers (even temps through agencies) are legal.
One other article I found is : http://www.eplicaservices.com/articles/Eplica07.ELU.CoEmployment.pdf and it states that the temp agency is "primarily responsible".
"Appropriate consent will often lead to a finding that there is no legitimate expectation of privacy. Therefore, if the client intends to conduct pre-employment drug testing, the testing should be coordinate through the temp agency and the appropriate consent forms should be signed by the temporary employee authorizing disclosure of the results to the temp agency and to the client. If the client has a policy of post-accident or reasonable cause testing, this policy should be communicated to the temporary employees, and the temporary employees should acknowledge in writing that they are subject to that policy while on temporary assignment with the client. Likewise, if the client has a policy with respect to surveillance, searches, monitoring of E-mail or voice-mail, etc., the temporary employee should be made aware of these policies to reduce any expectation of privacy."
I suspect if the agency were willing to disclose that the employer would have access to the I-9 documentation, that there would not be an issue of privacy based on this quote from that same article.
This leads me to believe that it might be dependent on the contracts between the employer and the temp agency and the temp employee.
Personally, I would say if you don't trust the agency to follow the law, then I would find another agency to work with. Because if they are skirting this issue, what other issues are they skirting that truly could become your liability?
If you are truly contracting out this out, then the temps are employees of the temp agency and the I-9 is their problem, not yours.
If there is even a hint of co-employment, then they need to fork over the I-9s or lose your business.
If you are a government contractor, there may be special rules that apply to you in terms of your due dilligence concerning contractors.
[quote user="BarbieW"]I agree with TXHRGuy that complying with the I-9 in a true contract situation is the agency's responsibility. But... didn't Walmart get in trouble because the contractor providing cleaning services at its stores was using unauthorized workers? Don't you at least have to take some steps to insure they are complying--at least with the contract?[/quote]
I don't recall the outcome of the Walmart case but I do recall that it was alleged that some members of the Walmart management team, including some executives, were aware that the contractor was using illegal labor. You don't have to ensure that your contractors are complying with IRCA if you have no reason to suppose that they are not. It was, essentially, a conspiracy to use illegal labor.