The Department of Justice has released an account of some recent enforcement activity and telephone interventions against employers for improper use of E-Verify and I-9 document abuse. What follows is a brief synopsis of these cases along with the lessons learned.

Case #1: Employer suspends new hire during TNC process

A small bakery participates in E-Verify and receives a tentative nonconfirmation (TNC) for one of its new hires. In response, the bakery suspends the worker without pay. The worker contacts the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and lodges a complaint. An investigation ensues and as a result, the bakery agrees to reinstate the worker and pay $4,104 in back pay.

Lesson learned: an employer cannot take adverse action (e.g. suspension or firing) against an employee who chooses to contest a TNC until a Final Non-confirmation is issued by the E-Verify system.

Case #2: Employer fires new hire upon receiving TNC

A landscaping company participating in E-Verify receives a TNC notice for a legal permanent resident employee during the initial verification process. Company then immediately terminates employee without giving him the opportunity to contest. Employee files a charge of citizenship status discrimination and document abuse with the OSC. As a result, landscaping company reinstates worker with back pay.

Lesson learned: same as above, plus employers must make sure to follow the E-Verify guidelines and give employee the opportunity to contest a tentative nonconfirmation.

Case #3: Telephone intervention prevents improper E-Verify use

Employer calls OSC hotline wondering if it can just run non-US citizens through E-Verify to ensure they are work authorized.  In a related question, caller asks if it can demand to see a green card in order to activate the photo tool even though employee properly gave a driver’s license and unrestricted SS card during the I-9 process. In response, the OSC advised that employers cannot selectively run new employees through E-Verify; instead, it must be used for all new hires at a given location. With regards to the photo tool, OSC explained that employers can never request specific documents during the I-9 or E-Verify process, although there is an exception for E-Verify in that you can demand that a List B document contain a photo.

Lesson learned: I-9 and E-Verify situations can be tricky, but there are resources (such as the OSC hotline) to help employers. Also, all users of E-Verify should make sure to take the mandatory tutorial to understand these important requirements and nuances.

The OSC Newsletter containing these stories can be downloaded here.