The Department of Homeland Security (DHS) issued a Fact Sheet on How to Correct Your Immigration Records after Resolving a Tentative Nonconfirmation in E-Verify.
A Tentative Nonconfirmation (TNC) may be received by an employer during the E-Verify process regarding records presented for purposes of the Employment Eligibility Verification form (Form I-9) which do not match up with DHS’ data.
Assuming the error isn’t on the part of the employer (e.g., incorrectly entered the data into E-Verify), an employer must advise the employee of the TNC and allow the employee to address the TNC with DHS. Note, an employer can also receive a TNC from the Social Security Administration.
DHS recommends employees either seek an appointment with U.S. Citizenship and Immigration Services (USCIS) through InfoPass or submit a Privacy Act request to correct their records (e.g., lawful permanent resident card or employment authorization document). For errors on the Form I-94 (Arrival-Departure Record) they recommend employees contact Customs and Border Protection. And finally, for students or exchange visitors, DHS recommends they contact the Student and Exchange Visitor Program website.
DHS notes that scheduling an appointment through InfoPass is the “fastest way” to correct one’s records with USCIS.
Note for Employers – You must allow employees an opportunity to contest a TNC. A DHS TNC case result does not necessarily mean an employee is not authorized to work in the United States. For an overview of the process click here.
A class action lawsuit has been filed against Whole Foods Market alleging violations of the Fair Credit Reporting Act (FCRA) in the U.S. District Court Northern District of California (Gezahegne v. Whole Foods Market California, Inc.; 4:14-cv-00592).
The complaint alleges Whole Foods Market obtained consumer reports without a valid disclosure and authorization due to extraneous language in the notice. The complaint alleges the following:
- Plaintiff and other similarly situated individuals executed online authorization forms to obtain a consumer report as part of the employment application process from January 2009 to present.
- The disclosure and authorization forms are invalid because Whole Foods Market included liability release language and therefore the forms did not “consist solely of the disclosure.”
- Not only are the forms invalid, but the actions by Whole Foods Market trigger statutory damages in the amount of up to $1,000/individual for whom a consumer report was procured based on the form.
The relevant language of the form reads, “I hereby authorize Whole Foods Market to thoroughly investigate my references, work record, education and other matters related to my suitability for employment and, further, authorize the references I have listed to disclose to the company any and all letters, reports, and other information related to my work records, without giving me prior notice of such disclosure. In addition, I hereby release the company, my former employers and all other persons, corporations, partnerships and associations from any and all claims, demands or liabilities arising out of or in any way related to such investigation or disclosure (emphasis added).”
Interestingly, there appear to be two different disclosure and authorization forms, one completed online and another in person, later in the interview process. The lawsuit alleges the online disclosure and authorization form is deficient and that the second form does not correct any alleged deficiencies.
The complaint alleges violations of the FCRA requirement that prior to procuring a consumer report on an applicant for employment an employer provide a clear and conspicuous disclosure and obtain the applicant’s written authorization. Furthermore, that the disclosure consist solely of the disclosure. (FCRA section 604(b)(2)).
The courts will decide this particular matter and this matter is in the early stages as it was filed just this month. As a general rule, employers should be cognizant of their disclosure and authorization form as releases of liability or disclaimers regarding the consumer reports can be problematic. The FCRA places responsibility for the disclosure and authorization form on the employer. In some instances, background screening companies may handle such for an employer, but the ultimate responsibility for the form lies with the user procuring the report or causing the report to be procured.
If you would like a copy of the complaint please send me an email to firstname.lastname@example.org.
Every year the federal government is mandated to consider whether to raise the ceiling on allowable charges under section 612(f) of the Fair Credit Reporting Act (“FCRA”) with respect to what a consumer can be charged for certain file disclosures by a consumer reporting agency (“CRA”). The task was previously handled by the Federal Trade Commission (“FTC”). It is now handled by the Consumer Financial Protection Bureau (“CFPB”) when that responsibility was transferred from the FTC to the CFPB pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
The fee originally started at $8.00 in 1997 and over the years has inched upward. Every January 1st the CFPB is required to consider whether and how much to increase the $8.00 amount referred to in section 612(f)(1)(A)(i) of the FCRA. After crunching the numbers, the fee remains the same as last year — $11.50. This is what CRAs may charge a consumer for a file disclosure under section 609 of the FCRA. Note that there are many instances in which a CRA cannot charge a fee and those are spelled out in section 612 of the FCRA (e.g., free annual disclosure by nationwide CRAs, free disclosure after adverse notice to consumer).
To view the notice in the Federal Register click here. The effective date is January 1, 2014.
The Department of Justice recently fined Infosys Corporation (“Infosys”) $34 million dollars in a settlement related to the company’s immigration practices, including their use of nonimmigrant workers with temporary work authorization and their failure to properly maintain Form I-9 records for a two-year period. For purposes of this blog, I will focus on the latter.
Below is the lead paragraph of the press release from the Department of Justice (“DOJ”):
“Infosys Corporation, an Indian company involved in consulting, technology, and outsourcing, has agreed to a civil settlement of allegations of systemic visa fraud and abuse of immigration processes by paying a record settlement amount and agreeing to enhanced corporate compliance measures, announced U.S. Attorney John M. Bales. The $34 million payment made by Infosys as a result of these allegations represents the largest payment ever levied in an immigration case.”
Some interesting points about this case and the settlement agreement:
- An Infosys employee and whistleblower received an undisclosed payment.
- Infosys, a technology company, is a publically traded company (Infosys Ltd). This means it has certain responsibilities and obligations to its shareholders. It also means that any non-compliance issues must be noted and addressed, including immigration non-compliance. The Infosys Annual Report for 2012-2013 discussed this matter on pages 48 and 67 under the heading Litigation.
- As if the investigation into their I-9 and other immigration practices wasn’t enough, as a part of the settlement, Infosys agreed to retain at its own expense an independent third-party auditor to conduct an audit of 4% of their Forms I-9 on an annual basis and prepare a report for the office that conducted the investigation into their practices – the U.S. Attorney for the Eastern District of Texas – for two years.
- This investigation began with an I- 9 audit and grew from there. Once the federal government is in, and assuming they have jurisdiction, companies need to be aware that other investigations may flow.
- The fine amount could actually have been higher but for Infosys’s cooperation with the government during the investigation and the fact that it took proactive steps with respect to its compliance with U.S. immigration laws both prior to and during the investigation (e.g., using E-Verify).
- According to DOJ, the investigation into Infosys’s I-9 practices showed that more than 80% of Infosys’s Forms I-9 forms for 2010 and 2011 contained substantive violations. The settlement alleged that Infosys failed to properly maintain I-9s, including properly reverifying the work authorization status of employees.
- In addition to the $34 million dollar settlement, legal fees associated with the settlement, future government audits and costs, and answering to shareholders is the fact that this story has traveled around the globe and been reported in major media outlets — Forbes, NPR, Wall Street Journal, Washington Post, NY Times, etc. Just like you don’t want to be “that guy” … you don’t want to be “that company” that everyone is talking about in this way.
All of this is to say that now is a good time to consider an independent I-9 audit by experienced immigration counsel to consider your practices with respect to not only your Forms I-9 but also other areas affected by U.S. immigration laws. In other words, a company’s practices around temporary workers in nonimmigrant status such as H-1B, L-1A/L-1B, TN, etc. The importance of understanding how your I-9s are being completed and whether they are compliant is an important step toward risk mitigation. Common errors that can lead to substantive violations include not having a Form I-9 for an employee hired after November 1986 or having the employee complete Section 1 but not completing Section 2 of the Form I-9.
Happy New Year!
A reminder that U.S. Citizenship and Immigration Services (“USCIS”) announced the release of three revised Memorandums of Understanding (“MOUs”) related to the E-Verify program. The MOUs are tailored to each E-Verify access method – Employer Access or Employer Agent Access and Browser Users or Web Services Users. Why is this relevant to you as an employer or Employer Agent?
- The MOUs have a revision date of June 1, 2013. To view the MOUs click here.
- USCIS retitled and revised their three current MOUs for E-Verify browser users and added three new MOUs for web services users and developers.
- New users will review and execute the new or revised version of the MOU that applies to their access method during enrollment.
- Existing users will not need to execute a new MOU, but are bound by the enhancements to the E-Verify program including the new or revised MOU that applies to their access method. The effective date of the MOU for existing users is January 8, 2014.
- One updated section relates to the privacy protections and instructions for reporting a data and security breach.
Takeaway — existing users should review and become familiar with the new or revised MOU that applies to their access method. To read the USCIS Fact Sheet click here. If you are interested in attending a webinar click here to view the January 2014 Webinar Schedule from the Department of Homeland Security on Form I-9, E-Verify and Self-Check webinars.
Last month plaintiffs’ counsel filed a Motion for Preliminary Approval of a Proposed Class Action Settlement against two Verisk Analytics companies — Intellicorp Records, Inc. and Insurance Information Exchange, LLC — for alleged violations of the Fair Credit Reporting Act (“FCRA”). The matter is pending in the United States District Court Northern District of Ohio and the consolidated case number is Case No. 1:12-cv-02288.
The motion alleges that Intellicorp Records, Inc. (“Intellicorp”), a background screening company, allegedly violated the FCRA. At issue is its product “Criminal SuperSearch”, which provides “instant” criminal history background checks. The FCRA allegations against the companies are for violations pursuant to sections 607(b) (accuracy of the report) and 613 (public record information for employment purposes). The matters involve pre-employment screening and criminal history background checks. Each of the plaintiffs alleges that Intellicorp violated the FCRA by failing to use “reasonable procedures” necessary to ensure “maximum possible accuracy” of the reports they sell by issuing inaccurate and incomplete reports. In addition, plaintiffs allege that Intellicorp violated section 613 of the FCRA by failing to notify consumers “at the time” it furnishes and sells a consumer report, as presumably it had failed to maintain strict procedures to ensure its public records information was complete and up to date. The plaintiffs’ claims involved an expunged record and mis-matched identities.
The settlement provides substantial monetary and non-monetary relief, including cash disbursements totaling $18.6 million and the monetary value of free consumer reports to all Class Members upon request (there are approximately 545,000 class members). In addition to monetary relief, Class Members are eligible for expedited dispute process and the legal help of Class Counsel for that process. In addition to monetary and non-monetary relief, Intellicorp agreed to refrain from advertising the Criminal SuperSearch or other similar database products as an “instant” product. In addition, as a result of the settlement, Intellicorp agreed that it will not make results available for a court records search unless and until a Single County Criminal or other appropriate individualized search is conducted.
Judge James Gwin signed the Preliminary Approval of Class Action Settlement November 25, 2013. A hearing to decide on Final Approval will take place May 23, 2014.
Two class action complaints were filed recently in the Superior Court of California County of Los Angeles court alleging violations of the Fair Credit Reporting Act (“FCRA”). The cases are Culberson v. The Walt Disney Company (Case No. BC526351) (“Disney”) and Ruffing v. First Choice Background Screening (Case No. BC526352).
The claim against Disney is that they knowingly violated the FCRA by failing to provide job applicants and employees with pre-adverse and adverse action notices, as well as failing to provide job applicants with a copy of their consumer report (aka background check report), pursuant to sections 604(b)(3) and 615.
In the Disney case, Mr. Culberson was hired by Disney and a background check was conducted by Sterling Infosystems, Inc (“Sterling”). The initial background check report showed that Mr. Culberson had a 1998 conviction, although it had been expunged. Mr. Culberson alleges that Disney never provided him with the appropriate adverse action notices nor provided him with a copy of his background check report. Upon contacting Sterling, Mr. Culberson determined that the report provided to Disney contained the expunged conviction. Sterling subsequently issued a new report without the expunged record.
In addition to FCRA violations, Disney is charged with an alleged violation of California Labor Code §432.7(a) for considering a record of arrest which did not lead to a conviction.
In a separate class action complaint, also filed in the Superior Court of California County of Los Angeles Court earlier this month, First Choice Background Screening d/b/a First Choice Research Screening (“First Choice”) is charged with multiple FCRA violations.
First, the suit alleges that First Choice violated section 604(b)(2)(A) of the FCRA by providing employers with a disclosure and authorization form that includes a release of liability as well as requiring that applicants state whether they have been convicted of a crime. The allegation is that First Choice’s disclosure and authorization form does not consist solely of the disclosure. Second, the claim alleges First Choice violated the FCRA by not using reasonable procedures to assure maximum possibly accuracy of the reports as well as strict procedures regarding the reporting of public record information pursuant to sections 607(b) and 613(a)(2).
Takeaway – both cases involve employment screening and should serve as a reminder to employers and consumer reporting agencies (“CRA”) to be mindful of their obligations under the FCRA.
- For CRAs it is important to consider the disclosure and authorization template you provide your end-users to ensure that it does not contain additional verbiage that could be challenged by plaintiff’s counsel as a notice which is not a “clear and conspicuous disclosure”. See section 604(b)(2) of the FCRA.
- For employers, whether it is handled by your CRA or internally, when using background check reports for employment screening purposes you must conduct the pre-adverse and adverse action steps, as applicable, when using information from such a report prior to taking any adverse action against the job applicant. See sections 604 and 615 of the FCRA.
If you would like a copy of either complaint please send me an email at email@example.com.
I will be conducting a free webinar tomorrow on the Form I-9 and E-Verify and compliance with the immigration laws. To view the webinar brochure click here.
Topics will include best practices for Form I-9 compliance, tips for completing the “Not So New Anymore” Form I-9, how to avoid getting caught in the anti-discrimination trap (due diligence vs. over/under-documentation), and what to expect if you are the subject of an ICE I-9 audit.
Please join me! Register through Venza by sending an email to Tracy Smith at firstname.lastname@example.org
The E-Verify system experienced a one-day glitch on October 22nd which led to certain employees erroneously receiving a Tentative Nonconfirmation. Note that this only applies to cases created in E-Verify (or that you tried to create) on 10/22/13. In the spirit of Halloween I highlighted key sections of the notice from the E-Verify Team regarding which documents led to the glitch. The below notice posted on USCIS’ website also walks employers through resolution of such cases in the system. Happy Halloween!
October 24, 2013
On October 22, 2013 E-Verify experienced some technical issues. These issues have been resolved. As a result, employees who provided U.S. Passports or Passport Cards were erroneously receiving Tentative Nonconfirmations.
This instruction only applies to cases created on October 22, 2013 for employees that provided a U.S. Passport or Passport Card. This does not apply to other employees who provided other acceptable document(s) from the List of Acceptable Documents.
If you created a case for an employee who provided a U.S. Passport or Passport Card and received a Tentative Nonconfirmation, close the case as “Invalid because the data entered is incorrect”. You should then create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9.
Additionally, if you were unable to create a case, you should now create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9. If you created the new case on the same day as the technical issue (October 22, 2013), you must close that case as “Invalid because the data entered is incorrect” and create a new case.
If you are prompted to select or enter the reason why the case was not submitted within 3 business days of hire please select “Technical Problems” from the drop-down menu.
You must NOT ask the employee to provide a different document if the document(s) they provided, including the U.S. Passport or Passport Card, appear to be genuine and relate to the individual presenting it. You must NOT request that employees produce more documents than are required by Form I-9 to establish your employee’s identity and employment authorization. Requiring that your employee present new or different documentation could be considered document abuse and is prohibited under the Immigration and Nationality Act.
We apologize for any inconvenience this may have caused. If you have any additional questions, please feel free to contact E-Verify at 888-464-4218. Customer service representatives are available Monday – Friday 8 AM – 5PM local time. You may also e-mail E-Verify at E-Verify@dhs.gov.
The E-Verify Team
Senate Bill 90 limits the use of arrest and certain other records by landlords when considering tenant applications. The law is effective January 1, 2014.
When I say beware of Oregon, I mean no disrespect as it is a lovely state with wonderful Pinot Noirs. And I do recommend visiting Mt. Hood.
Back to tenant screening. Section 3 of SB 91 is the critical section. This section limits a landlords ability to consider actions to recover possessions as well as arrest records. The latter has enough exceptions to consume the limitation on arrest records, but it is nonetheless important to be aware of this law and the impact it has on the reporting of this information in Oregon.