Do You Employ Undocumented Workers?

The Workers’ Compensation Act of Colorado does not exclude Workers’ Compensation coverage for undocumented workers. In fact, Colorado statute [8-40-202 (1) (b)] specifically says:

…an “employee” is any person under any contract of hire, express or implied, including aliens and minors, whether lawfully or unlawfully employed, is deemed an employee and entitled to the maximum benefits provided by Workers’ Compensation…

This generally includes medical expenses, rehabilitation, time loss, and temporary or total disability payments which, along with administrative costs, can be even more costly in the case of undocumented workers.

Although neither federal nor state law requires special districts to authenticate the documentation submitted by employees in connection with Section 2 of the Form I-9, the Pool recommends verification of employee identification as a best practice once there is an offer of hire. The Immigration Reform and Control Act (IRCA) make it the responsibility of all U.S. employers to verify employee identity and employment eligibility. According to U.S. Citizenship and Immigration Services, every employer must have a Form I-9 on file for all employees hired in the U.S. after November 6, 1986. New employees must complete and sign Section 1 of the Form I-9 by the close of business on their first day of work while the employer must complete Section 2 of the Form I-9 within three days of an employee hire.

If the employee’s documentation in Section 2 does not reasonably appear to be genuine and to relate to the employee presenting it [Social Security Number (SSN), birth certificate, passport, etc.], the employer may have the employee resubmit satisfactory proof of the documentation. If the employee cannot prove documentation, employment termination is required under U.S. immigration law. Termination may also be allowed by an employer’s personnel and hiring policy if there is a provision relative to submitting false information. It is important that employers have personnel polices in place to address and close potential gaps as undocumented worker issues gain momentum.

We already know that verification is important. What can special districts do? Here are some solutions:

  • The Social Security Administration (SSA) office offers a free service called Employee Verification Service (EVS) that compares and verifies employee names and social security numbers with the SSA records. Any employer wishing to access the services of EVS must supply the following information for each employee: SSN / Last Name / First Name / Middle Initial / Date of Birth / Gender. Up to five names and SSNs can then be verified at the same time by calling EVS Monday–Friday, 7 a.m. to 7 p.m. (EST), toll free at 1-800-772-6270.
  • Employers who have more than 50 names/SSNs to verify must register with the SSA to use EVS. The service is still free but requires a Requester Identification Code be assigned to your organization once a Privacy Act Statement is signed by an official of your district. The employer can submit data via magnetic tape, spreadsheet or disc. This method allows an employer to submit a large number of employee SSN’s to compare against SSA information.
  • SSA also has an on-line service called Social Security Number Verification Service (SSNVS) that allows employers to verify information on up to ten names/SSNs at a time. This method requires the employer to register and obtain a PIN number from the SSA.
  • Mountain States Employers Council (MSEC) provides its subscribing members certain pre-employment screening services. MSEC can conduct background criminal record checks on new hires for a fee based on the depth of information desired. MSEC charges $10 to verify each SSN.

Please check with your own attorney to clarify how these issues pertain to hiring qualified workers for your district. It is important to note that EVS information cannot be used in and of itself as a basis for employers to take unfavorable action against the employee when their information does not immediately match. EVS information should only be used to verify workers currently employed or an entire payroll database and should be applied consistently to all workers. Used incorrectly, SSN verification may be cause for anti-discrimination and unfair employment sanctions.

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