OSC Continues to Pursue Companies Who Discriminate on the Basis of Immigration Status

[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, an immigration attorney in the Nashville, TN office of Siskind Susser PC.]

March was a busy month for the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, a division of the Department of Justice. It settled cases against Onward Healthcare, Indrescom Security Technology, and Ross Department Stores, who were each accused of immigration discrimination.

Onward Healthcare, a healthcare staffing company based in Connecticut, resolved allegations that the company posted discriminatory job advertisements on its home page and third party websites that limited its jobs to U.S. citizens. Over a one year period, thousands of Onward Healthcare’s job postings impermissibly limited applications to U.S. citizens, even though work-authorized immigrants, such as lawful permanent residents, asylees and refugees, should have been allowed to apply.

The Immigration and Nationality Act (INA) generally prohibits employers from discriminating on the basis of citizenship status unless required by law, regulation or government contract. It was determined Onward Healthcare had no legal basis for its stated citizenship preference. Under the settlement agreement, Onward Healthcare agreed to pay $100,000 in civil penalties, to change its internal policies and manuals to reflect the INA’s protections, and to be subject to reporting and compliance monitory requirements for a period of three years.

The Indrescom Security Technology and Ross Stores settlements involved situations where the employers demanded more documentary requirements for permanent residents than U.S. citizens. Specifically, Ross Stores refused to honor a work authorization document and demanded a permanent resident card while Indrescom refused to accept a valid driver’s license and Social Security card and demanded a permanent resident card.

Per the settlement agreement, Ross Stores agreed to reinstate the charging party and pay $6,384 in back pay plus interest to the charging party and $10,825 in civil penalties to the United States. Ross Stores also agrees to comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process and to be subject to reporting and compliance monitory requirements for 18 months. Similarly, Indrescom agreed to pay $7,000 in back pay to the charging party, train its human resources personnel and be subject to reporting and compliance monitoring requirements for three years.

The lessons to be learned through these settlements are do not limit you applicant pool to only U.S. citizens unless you have a government contract or similar situation which requires only U.S. citizens and do not demand the employee’s permanent resident card if they have already provided you with sufficient documentation to establish work authorization.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

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More on E-Verify Civil Rights Initiatives

The United States Citizenship and Immigration Services (USCIS) has released a Fact Sheet which explains the new E-Verify civil rights initiatives announced this week and provides guidance on how information will be shared with the Department of Justice. As previously reported, the E-Verify program is often criticized on the basis that it may promote unintentional discrimination (particularly against foreign-born workers) who are more likely to receive a TNC. In response, the USCIS has announced a trio of initiatives (employee hotline, training, and government information sharing) to educate workers and employers on E-Verify and address any actual discrimination which occurs.

What does this mean to employers?

As an employer, it’s important to understand how your E-Verify data may be shared with other government agencies and what the potential risks are. Under this new sharing agreement, the USCIS can refer matters to the DOJ when they feel an employer is engaging  in discrimination on the basis of national origin or citizenship status OR there is evidence of misuse, abuse or fraudulent use of E-Verify. The referral from USCIS will include relevant E-Verify data as well as other information obtained through an audit or the E-Verify hotline. The DOJ will then use this information to identify potential patterns or practices of discrimination OR in investigating individual claims. If discrimination is found, the DOJ may bring enforcement actions against the employer within 210 days of the filing of a charge or, for independent investigations, within 180 days of the last discriminatory act. In turn, the DOJ will share any discriminatory information it uncovers with the USCIS so it may act accordingly.

Bottom line: it’s very important to closely monitor your E-Verify activities and ensure that all proper procedures are being followed.

In addition, the USCIS has provided more information on its employee hotline including the types of question that can be addressed. When calling the number, the employee will be able to choose from 4 options, including (1) General E-Verify information; (2) Completing the Form I-9; (3) Contesting an E-Verify case; and (4) Filing a complaint regarding possible discrimination or employer misuse of the E-Verify program. The hotline will also provide information on reporting an identity theft, although it will not be able to tell you whether an identity has actually been stolen.

The employee hotline (888-897-7781) will be active on April 5, 2010. Hours of operation are:

 8 a.m. – 5 p.m. local (continental United States, Puerto Rico and U.S. Virgin Islands)
 8 a.m. – 4 p.m. (Alaska)
 8 a.m. – 2 p.m. (Hawaii 

DHS Announces E-Verify Initiatives and Defends Accuracy Rate

Training Video from USCIS

Training Video Snapshot

Today, DHS Secretary Janet Napolitano and USCIS Director Alejandro Mayorkas announced several new E-Verify initiatives in response to concerns about the program’s overall effectiveness and accuracy. These efforts are designed to increase employer compliance with various E-Verify rules, prevent employment discrimination and deal with identity theft. In particular:

  1. DHS has entered into an agreement with the Department of Justice whereby the two agencies will share information concerning potential E-Verify discrimination or misuse, which will ultimately bring noncompliant employers under greater scrutiny.
  2. DHS is setting up an informational telephone hotline for employees seeking E-Verify information or looking to file a complaint about possible discrimination or employer misuse. The hotline number is (888) 897-7781 and will be active beginning April 5, 2010.
  3. DHS has published training videos on E-Verify procedures and policies, with a particular emphasis on employee rights. The video, which depicts the story of an employee who receives a TNC at work, can be viewed in English and Spanish on YouTube here.

In related news, the DHS publicly defended E-Verify on its blog today, asserting that the system’s accuracy and efficiency continues to improve despite news to the contrary. Lauren Kielsmeier, the Acting Deputy Director and Chief of Staff for USCIS, points out that just 3.3% of the overall population studied by Westat (the independent evaluation firm) was incorrectly found to be work authorized. She also writes that USCIS is planning additional enhancements to E-Verify such as adding U.S. passports to the photo tool and working with states to access state driver’s license data. USCIS is also planning to launch a pilot program to explore the use of biometric or biographic-based verification.

Latest stats: more than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility. Since Oct. 1, 2009, E-Verify has processed more than six million queries.

Tales of E-Verify Misuse and I-9 Discrimination

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.

Form I-9 Tips for Employers: Avoiding Discrimination in Processing I-9 Forms

The Tracker I-9 team will periodically post on our News Blog tips for employers who may want additional information about Form I-9 and E-Verify. Today’s tip is on avoiding discrimination in recruiting, hiring, and processing I-9 forms.

 

When employers do not meet all the Form I-9 requirements, miss important deadlines, and/or take actions viewed as discriminatory, they place themselves at risk of government sanctions and potential employment discrimination lawsuits.  It is therefore essential for employers to be continuously informed about frequent changes in the laws and regulations, especially as they pertain to the documents that employers may accept from newly hired employees during employment verification.

 

Employers should treat employees equally when recruiting and hiring, and when verifying employment eligibility and completing Form I-9.  Specifically, employers should note the following:

 

1. Employers should never set different employment eligibility verification standards or require that employees present different documents because of their national origin and citizenship status.  For example, employers cannot demand that non-U.S. citizens present DHS-issued documents; employees must be allowed to choose the documents they will produce from the lists of acceptable Form I-9 documents.  Another example: both citizens and work-authorized foreign nationals may produce a driver’s license (List B) and an unrestricted Social Security card (List C) to establish identity and employment eligibility.

 

2. Employers should never request employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen.

 

3. Employers should never refuse to accept a document—or refuse to hire an individual—because a document has a future expiration date.

 

4. Employers should never request that an employee present a new unexpired employment authorization document (EAD) during reverification if he or she presented an EAD during the initial verification.  For reverification, each employee must be allowed to present any document either from List A or from List C.  Refugees and asylees may possess EADs, but they are authorized to work based on their status and may possess other documents that prove work authorization from List A or List C to show upon reverification, such as an unrestricted Social Security card.

 

5. Employers should never limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local government contract.

 

Employers can request a free E-Verify and Form I-9 HR Toolkit from the Tracker I-9™ website.

 

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.