General Publications December 18, 2019

“E-Verify Tool May Help Employers Avoid a DOJ Investigation,” Law360, December 18, 2019.

Extracted from Law360.com

Employment eligibility verification represents a growing thicket of compliance requirements. While E-Verify aids with streamlining and monitoring information that employees provide on their Form I-9, employers should take note of one particular practice common among employers that can trigger unnecessary investigations and fines once detected by E-Verify’s monitoring and compliance office.

If a suspiciously high percentage of employees provide the same type of employment eligibility documentation, this will trigger E-Verify’s monitoring and compliance office to contact the U.S. Department of Justice to conduct an independent investigation on the basis that the employer’s practice violates Title 8 of U.S. Code Section 1324b, the anti-discrimination provision of the Immigration and Nationality Act.

How can an employer avoid unnecessary investigations and potential fines, while complying with employment eligibility verification requirements? Some best practices companies should implement to address this complex regulatory landscape include:

  • Utilizing E-Verify’s user reports to self-monitor and track how non-U.S. citizen employees choose to complete their Form I-9;
  • Taking steps to avoid potential employment discrimination, as defined by 8 U.S.C. Section 1324b; and
  • Taking measures to avoid other common E-Verify errors that will trigger the monitoring and compliance office to contact an employer before turning the information over to other agencies.

Steps to Avoid Potential Employment Discrimination

  •  Have a written Form I-9/E-Verify employment verification policy that addresses 8 U.S.C. Section 1324b discrimination issues;
  • Provide staff responsible for the Form I-9/E-Verify employment verification process with U.S. Citizenship and Immigration Services’ M-274 Employer Handbook;[1]
  • Provide staff responsible for the Form I-9/E- Verify employment verification process with training and updates;
  • Make clear to those not responsible for the Form I-9 or E-Verify employment verification process to refrain from discussing the Form I-9 employment verification process with any applicant or new employee, including any suggestion as to which documentation they may provide for completing the process;
  • Provide every new employee with access to or a copy of the Form I-9 list of acceptable documents and instructions at the same point in the onboarding process;
  • Use approved written scripts for all employment verification communications with applicants and employees;
  • Enforce a policy of treating all persons the same;
  • Identify a single employment verification expert to periodically review the company process and to whom questions be directed;
  • Periodically talk with newly on-boarded employees to confirm that the employment verification process is being administered properly and consistently; and
  • Do not rely solely on E-Verify’s mandatory E-Verify training.

Many employers think they are fully compliant and immune to investigation or fine exposure because they have a Form I-9/E-Verify employment verification policy, provide employment verification training, adopt a policy of treating all persons the same and ensure that each E-Verify user completes the mandatory E-Verify training.

This is not the case, as evidenced by the DOJ Civil Rights Division’s Oct. 17 settlement[2] (following a multi-year investigation) with MUY Brands LLC and MUY Consulting Inc., which imposed a penalty on the owner and operator of 78 Taco Bell restaurant franchises in six states, or the 2013 Centerplate Inc. settlement[3], which involved one of the largest hospitality companies in the world. Accordingly, another best practice to consider is utilizing E-Verify’s user reports to self-monitor and track how non-U.S. citizen employees choose to complete their Form I-9.

Utilizing E-Verify’s user reports to self-monitor and track how non-U.S. citizen employees choose to complete their Form I-9 is a best practice option. It is the same process used by the E-Verify monitoring and compliance branch to determine if any 8 U.S.C. Section 1324b discrimination violations have occurred.[4]

The employer should, at the proper internal level and to prevent additional risks with legal employment verification requirements, do as E-Verify’ s monitoring and compliance branch does: utilize the company’s E-Verify data to assess and address any potential discrimination issues arising out of its staff’s processing of Form I-9s or E-Verify. The employer should perform this assessment company-wide and for each E-Verify user.

How to Utilize the E-Verify User Report? 

The employer first pulls the E-Verify user report for a designated period (for example, six months). The report is produced in an Excel format.

The employer can manipulate the report to sort by citizens versus noncitizens. The employer can then see the alignment of document type presented (List A, List B, or List C) for citizens versus noncitizens. The employer should then calculate the percentage of frequency of List A documentation being presented for noncitizens.

A high percentage (for example, 98%) of List A documents being presented for noncitizens could trigger E-Verify’s monitoring and compliance branch to inform the DOJ of this practice and the DOJ to initiate an investigation based on an allegation of citizenship and nationality discrimination. The threshold varies, but if the percentage of List A documents presented for noncitizens is 98% or higher, E-Verify’s monitoring and compliance branch will likely make a referral to the DOJ. During an investigation, the DOJ may apply a lower threshold as evidence of discrimination.

Actions taken by an employer based on the results of their E-Verify user reports are very important. All actions must be executed uniformly and only with expert legal guidance. The advantage of reviewing E-Verify user reports is that an employer may learn of an error in their employment verification process and ensure that newly hired employees are promptly onboarded without any perceived or actual 8 U.S.C. Section 1324b discrimination violations. Another advantage is avoiding a costly or lengthy DOJ (or other) investigation.

Under the law, an 8 U.S.C. Section 1324b violation is a per person violation — what transpired with each person is the basis of each violation. Regardless, the percentage is used as evidence for the referral and the opening of a DOJ investigation. The burden is then on the employer to defend itself.

As recognized by many, it is common for human resources personnel or an E-Verify user to ask newly hired employees who identify themselves as permanent residents in Section 1 of the Form I-9 to provide their permanent resident card, or green card, in order to confirm the accuracy of the alien number written in Section 1 of the Form I-9, to verify the employees’ status selection or to match it against E-Verify’s photo tool.

This human resources personnel or E-Verify user request is made for the purpose of legal compliance, but as such it is incorrect. A request for the green card, even if mistakenly requested based on a misunderstanding of the legal requirements, and even if done by only one employee in contravention of the company’s policy prohibiting such a practice, may easily constitute a violation of the law. Such a violation can result in a government fine, which will be based on the percentages, multiplied for each person that presented a List A document.

There are many other common E-Verify practices that will trigger the monitoring and compliance branch to contact an employer. Typically, the branch contacts the employer before turning the information over to other government agencies. Note that E-Verify is administered by the U.S. Department of Homeland Security, which has agreements to share information with many agencies. Some of the common E-Verify behaviors and errors committed by employers that may trigger a monitoring and compliance branch inquiry include:

  • Use of invalid Social Security numbers;
  • Running cases using invalid SSNs;
  • Verifying existing employees;
  • Non-use (or little use) of E-Verify;
  • Failure to verify within three days of hire;
  • More than one “employment authorized” result returned for the same SSN within a certain time period;
  • Case closed as invalid before final agency determination;
  • Failure to resolve a temporary nonconfirmation;
  • An employee who continues to work after a temporary nonconfirmation, final nonconfirmation or DHS no-show; or
  • An employer’s request for delay of verification.

Based on certain criteria, when these behaviors are observed, E-Verify’s monitoring and compliance branch will contact, call, email or even visit the employer to ensure the employer and its staff properly understand the process, and suggest any needed corrections in order to ensure compliance.

Unlike other monitored behaviors, if E-Verify’s monitoring and compliance branch detects too high a percentage of List A documents being presented for permanent residents, it will not reach out the employer before referring the case to the DOJ for an investigation. In other words, for this error, the employer will receive no advance warning of a need for correction.

Instead, the employer will be blindsided by a DOJ investigation that may start with one location or division and extend across the entire organization. The result of the investigation could mean hefty fines, which the company’s good behavior (i.e., employment verification training, good company policies in place, near perfect compliance by the rest of company personnel charged with executing the employment verification process) will not ameliorate. There will be no bonus points.

Too high a percentage of List A documents being presented for permanent residents is akin to a strict liability offense. Employers should be aware of all their employment verification obligations and ensure measures are taken to avoid such an occurrence.


Footnotes:

[1] https://www.uscis.gov/i-9-central/handbook-employers-m-274.

[2] https://www.justice.gov/opa/press-release/file/1210746/download.

[3] https://www.justice.gov/sites/default/files/crt/legacy/2013/01/17/Centerplate.pdf.

[4] Many employers and staff think a violation of intentional discrimination only occurs when, because of prejudice against a certain class of persons (due to their sex, age, disability, citizenship, national origin, etc.), the employer purposely refuses to interview or hire such persons or puts artificial road blocks before such persons. In such case, these negative actions are performed with the intent to deter or dissuade the person due to prejudice against the person. However, practically speaking, in many Form I-9 employer verification situations (E- Verify), intentional discrimination violation (under the current interpretation of INA Section 1324b(6)) does not require a showing of intent, but of treatment; these discriminatory “document abuse/unfair practice” cases are akin to a strict liability offense. For example, if an employer’s administrator asks a new employee to bring in a specific document for employment verification, even if the “ask” was made solely with the intention of helping the new employee and to speed up the on-boarding process (i.e., the opposite of what one would think constitutes discrimination), such a request can still constitute an intentional discrimination violation under INA Section 1324b(6)) and can result in a DOJ investigation and fines.
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