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Immigration Compliance and Background Screening

Illinois Ban the Box Measure Approved

Posted in Background Check, Criminal History Records

Illinois Governor Pat Quinn signed into law the Job Opportunities for Qualified Applicants Act (Public Act 098-0774) on July 21, 2014, which will go into effect January 1, 2015.  The law bans criminal history checks in the private sector until after an applicant is deemed qualified for the job or a condition offer of employment is made.

Below are some details about the approved Act:

  • An employer is defined as any person or private entity that has 15 or more employees.
  • The Act states that “an employer or employment agency may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position and notified that the applicant has been selected for an interview by the employer or employment agency or, if there is not an interview, until after a conditional offer of employment is made to the applicant by the employer or employment agency”.  (Section 15(a))
  • The Act does not apply to positions where employers are required to exclude applicants with certain criminal convictions due to federal or State law, a standard fidelity bond or equivalent is required and an applicant’s criminal history would be relevant, or employers employ individuals licensed under the Emergency Medical Services System Act.
  • Interestingly, the Act does not prohibit an employer from notifying applicants in writing of the specific offenses that will disqualify an applicant from employment in a particular  position due to federal or State law or the employer’s policy.  (Section 15(c))

Lessons Learned from a Georgia Construction Company Fined $228,300 for Form I-9 Violations

Posted in Form I-9, ICE Enforcement Actions

The Department of Justice, Office of the Chief Administrative Hearing Officer (OCAHO) assessed an I-9 related penalty of over $228,000 to a Georgia construction company.  This is one of the larger fines I’ve seen issued by Immigration and Customs Enforcement (ICE) for such violations, and it was even below what they originally assessed, which was a fine of nearly $332,000.  All this over paperwork violations (i.e., failure to present and/or failure to properly complete) related to the Form I-9, the Employment Eligibility Verification form which all new hires must complete.

  • The issuance of the Notice of Inspection (NOI) by ICE was fueled by a damaging media story by the Atlanta Journal Constitution in 2010 in which a group secretly taped a foreman making statements about hiring undocumented workers.  ICE issued an NOI requesting Forms I-9 for a three year period as well as employment records, payroll data, wage and hour reports and other information.
  • ICE alleged two counts.  First that the company failed to ensure that 277 named employees properly completed Section 1 of the Form I-9 and/or failed to ensure that the company properly compelted section 2 of the Form I-9.  Second, that the company failed to prepared and/or present Forms I-9 for 87 employees. ICE initially requested a penalty of $332,813.25 with penalties of $981.75 per I-9 violation.  OCAHO Administrative Law Judge Thomas issued a final decision and order, finding the company liable for 338 of the violations alleged, but mitigating the total penalty to $650 for each violation in Count I and $750 for each violation in Count II, for a total civil money penality of $228,300.  See, United States of America v. M&D Masonry, OCAHO Case No. 13A00023.
  • In Judge Thomas’ decision there was a discussion regarding determining the appropriate size of the company for purposes of assessing a civil penalty.  But what I found interesting is the fact that the company pre-signed over 100 Forms I-9, which could constitute a false attestation. In her decision, Judge Thomas states, “review of the company’s I-9 forms reflects what appears to be a wholesale execution by means of a rubber stamped signature in section 2 on February 20, 2008 of a large number of what must have been at the time otherwise blank I-9s.”  It furthermore appears that many of these forms listed no documents in Section 2 and no start dates. Judge Thomas goes on to say, “It is difficult to avoid the inference that the forms were prepared in bulk in advance and used as needed for subjsequent hiring.”  See United States v M&D Masonry, 10 OCHAO no. 1211, p. 12.

Lessons Learned

As a practitioner in the field, I know that company’s often struggle with issues related to Form I-9 compliance stemming from a variety of reasons.  But employers can learn a few lessons from this case.

  • Know what those in the field or on-site are doing (specifically those with hiring authority) because their actions can hurt the company.  Also, no one other than principals or a designated spokesperson should be authorized to speak with the media. This case was a little different since the individual allegedly secretly taped the foreman, but have a media plan in place so that all media requests are funneled to the appropriate individuals within the company.
  • Often times, especially where there is high turnover or high volume hiring, employers try to streamline the I-9 process in different ways.  One way may be to pre-populate the employer information section in section 2 of the Form I-9.  That can be acceptable depending on how it is done, but it is never acceptable to pre-sign section 2 of the Form I-9.
  • Have a Form I-9, properly completed, for each current employee.  Civil paperwork penalties for the Form I-9, which range from $110 to $1,000, can quickly add up due to aggravating factors and therefore they are never really $110 per violation.

 

Consumer Privacy: How to Avoid or Prevail in Class Action Litigation

Posted in Uncategorized
On this month’s webinar, part of Arnall Golden Gregory’s  Privacy Live Webinar Series, we will cover recent trends in class action litigation related to the Fair Credit Reporting Act (FCRA), Telephone Consumer Protection Act (TCPA) and data breaches. The panelists will discuss how class action lawsuits evolve and what drives them. In addition, they will discuss litigation avoidance strategies and potential defenses when these kinds of cases arise.
  • Overview of current privacy and consumer regulatory “hot topics”
  • Telephone Consumer Privacy Act (TCPA) – class action litigation trends
  • Fair Credit Reporting Act (FCRA) – class action litigation trends
  • Anatomy of a successful class action defense

Webinar date — July 30 at 11 am EDT.

Register Now for this one-hour, complimentary webinar with AGG attorneys Montserrat Miller, Kevin Coy, Henry Chalmers and Kelly Gordon Zemil.

This webinar is awaiting CLE credit approval by the State Bar of Georgia.

DOL, EEOC and OPM Discuss Criminal History Records

Posted in Background Check, Criminal History Records

On July 16, 2014 representatives from three federal agencies will provide their perspective on current policies and best practices to reduce barriers to employment for individuals with past criminal arrests or convictions.   Although the webinar is targeted toward federal contracting officials, it is well worth your time if you are engaged in background screening operations to hear the federal government’s perspective on the use of criminal history records for employment purposes in this context.  Below is the webcast announcement from the Department of Labor, Office of Federal Contract Compliance Programs.

WEBINAR ANNOUNCEMENT

In support of President Obama’s efforts to strengthen the economy and get more Americans back to work, the U.S. Department of Labor, Office of Personnel Management and Equal Employment Opportunity Commission are working together to reduce barriers to employment for individuals with past criminal arrests or convictions. To learn more about these efforts, we invite you to attend a webinar entitled:

Engaging Federal ContractorsUnderstanding the Current Policies and Best Practices to Reduce Barriers to Employment for Individuals with Past Criminal Arrests or Convictions”

Representatives from DOL, OPM and the EEOC will host this joint webinar for federal contracting officials to ensure familiarity with the rules and best practices regarding nondiscrimination and the appropriate use of criminal background checks to screen applicants for employment.  In particular, the webinar will focus on the Office of Federal Contract Compliance Programs’s Directive 2013-02, “Complying with Nondiscrimination Provisions: Criminal Record Restrictions and Discrimination Based on Race and National Origin,” OPM’s “Best Practices for Contractor Fitness Adjudication,” and EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”

When:

Wednesday, July 16, 2014

1:00 P.M. to 2:30 P.M. Eastern

Who should attend?

The audience for this joint session will include the acquisitions community, procurement officials, project officers, personnel security staff, federal contractors, and human resources staff.

How to View the Webinar:

The link to view the OPM webcast is:

http://new.livestream.com/OPMWebcast/20140716contract

The link to view the captioning for the webcast is:

http://recapd.com/w-0798e6

You will be able to watch the webcast on a PC or MAC computer. When you click on the link it will open up into whatever your default browser is set to on your computer. Chrome. Firefox. Internet Explorer. Safari. Opera. You should make sure that your browser has the latest updates.

You should try and view the webcast with coworkers in one central location to preserve bandwidth for your organization.

If you telework DO NOT log onto the webcast through CITRIX. You will NOT be able to view the webcast through the CITRIX connection. Simply click on or copy and paste the link into your favorite browser with a broadband connection.

If you have any problems connecting to the webcast, please contact your IT Help Desk right away.

 

Tip of the Week

Posted in Form I-9

Moving forward, every week I will aspire to post a “Tip of the Week” based on what I see in my practice and which may be helpful to you to avoid the same issue.  These will simply be tips of a general nature and not intended as legal advice.  This week’s tip relates to the Form I-9, the Employment Eligibility Verification form, which employers must complete whenever they hire a new employee.

These days, the Form I-9 is two-pages long.  When conducting Form I-9 self-audits/internal audits for clients I often see this error — the employer does not write the employee’s name along the top of Section 2 on the second page of the Form I-9.  This is problematic because ICE (the agency that enforces companies compliance with respect to the requirement to have a Form I-9) believes that without the indivdual’s name on the second page there is no way that second page could be identified with that employee.  Leading, on its face, to a situation where an employer may not have a complete Form I-9 to present to ICE.  Now, if you only have 5 employees that may not be a problem because reasonable minds could solve the mystery, but what if you have 100s or 1,000s of Forms I-9?

Imagine this scenario — the summer intern just pulled all of your I-9s together in an organized manner and subsequently is walking into the secure location where they are stored, trips, and all the forms go flying up in the air and scatter.  What’s worse, the intern is so mortified that they simply pull them all together, place them in the cabinet and return to their college without telling you what happened.  Imagine your surprise when you discover this.  Out of curiosity, pull some of your Forms I-9 (assuming they are paper I-9s) and check whether the employee’s name is on page 2, along the top of the form.

If you think it’s time to conduct an internal audit of your Forms I-9, we are ready and able to do so at Arnall Golden Gregory LLP.

Happy 4th of July!

Complimentary Privacy Webinar Tomorrow

Posted in Privacy

Join us tomorrow for DPRCRA Live: Privacy at MidYear to learn about the latest developments in the privacy field. Tomorrow’s webinar is another in a series of webinars hosted by my firm, Arnall Golden Gregory LLP, and the Privacy & Consumer Regulatory Practice Group.  This month we will review and discuss some of the biggest events that have occurred in the privacy field to date in 2014.  This webinar will cover the following major events and developments:

  • The FTC’s new Data Broker Report;
  • Wyndham and LabMD – the battle over the FTC’s authority;
  • Updates on data privacy in the European Union and the “right to be forgotten”;
  • EU Safe Harbor;
  • The FTC Spring Privacy Series, including discussions on: mobile device tracking and alternative scoring products;
  • Debt collection in light of the FTC’s settlement with Consumer Portfolio Services; and
  • An update on the past six months on Capitol Hill.

Join AGG Privacy attorneys Montserrat Miller, Joseph Rubin, Kevin Coy and Kelly Gordon Zemil for this one-hour, complimentary webinar. A live Q&A session will follow the discussion.

To Register please click this link.

 

 

New E-Verify Feature

Posted in E-Verify, Form I-9

E-Verify will now notify you when a case you enter has the same Social Security number as another case entered in the last 30 days. This will allow E-Verify users to catch and correct duplicate cases early in the case creation process. This idea was submitted to E-Verify Listens.  I just received a notice from USCIS on this. To hear more about this new feature and other E-Verify enhancements released today, participate in the Department of Homeland Security’s E-Verify for Existing Users Webinar on June 25th at 11 am EST.

This is a follow up from yesterday’s posting, where I just realized to my shock and horror that I misspelled “Enhancements” in the title.

Also, I listened to today’s USCIS E-Verify and Form I-9 Virtual Forum and note this comment from the E-Verify Monitoring & Compliance branch about what types of noncompliance they are looking for regarding users of the E-Verify system:

  • The unintentional misuse of the system, such as a new user who may unintentionally incorrectly use the system;
  • Suspected discriminatory use of the system; and
  • Suspected fraudulent use of the system.

There is in fact an office within U.S. Citizenship and Immigration Services (USCIS) that uses data analytics and algorithms to monitor for compliance of the system by users.  Let’s say you are an employer who uses E-Verify and you always say the reason you did not create a case within E-Verify within the required time period of three business days is due to “technical reasons” — that might be suspect and lead to review. The Monitoring & Compliance team may call you or send you an email, they may conduct a desk top review or a site visit, or worse case scenario, refer the case to Immigration and Customs Enforcements (ICE) or the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).    Bottom line, if you use E-Verify have policies and procedures in place regarding its use and understand it is an important part of the onboarding process that goes hand in hand with Form I-9 compliance.

New E-Verify System Enchacements for Users

Posted in E-Verify

On June 22, 2014, E-Verify will release a new set of enhancements to the system, including:

  • Flagging duplicate cases so multiple cases aren’t created for the same employee;
  • Updating the Further Action Notices (FAN) for web service users so that fields that previously incorrectly pre-populated do not occur; and
  • Updating and validating user information when passwords expire — meaning next time you reset your password you may be asked to update your telephone number and email address.

Additionally, users of the E-Verify system will be required to complete a refresher tutorial prior to accessing E-Verify functionality.

Regarding the FAN, which appears when an employee receives a Tentative Nonconfirmation (TNC), this form must be printed and provided to the employee as the FAN explains the reason(s) for the TNC and the employee’s right to contest it.  The FAN is now available in 17 foreign languages and those can be found by clicking here.

Form I-9 Violations Add Up — If and How the Form Is Completed Matters

Posted in Form I-9, ICE Enforcement Actions

Immigration and Customs Enforcement (ICE) assessed penalties totaling $264,605 for 283 Form I-9 violations on a restaurant in New York.  That’s a lot of money for a small business for paperwork violations!  Following a government investigation of the company’s I-9 compliance, ICE alleged that the restaurant failed to properly complete I-9s for 264 employees and failed to prepare or produce I-9s for 19 employees.  ICE proposed a penalty of $264,605, with a baseline penalty of $935/violation, alleging that the increased baseline was due to the seriousness of the violations and the bad faith of the employer.  It then mitigated the baseline amount due to the employer’s small size and absence of unauthorized workers.   Ultimately this matter ended up in court, before the Office of the Chief  Administrative Hearing Officer (OCHAO), where Administrative Law Judge Thomas reduced the total penalties to $88,700.  Still a lot of money for a small business.  Judge Thomas found that the government’s proposed total penalty was excessive, in part due to its small size and also its location in an economically depressed area.  She also found no bad faith on the part of the employer. The case is United States v. Two for Seven, LLC, 10 OCAHO no. 1208, 2014 OCAHO LEXIS 1 (Jan. 15, 2014).

Takeaways from this case:

  • Fines for I-9 compliance lapses quickly add up and ICE aims high when assessing penalties.  Paperwork violations start at $110/violation and can go as high as $16,000/violation if you are a repeat offender. Generally speaking, in government investigations I handle, I often see ICE use $935 as the baseline fine amount.  One bad I-9 can equal $935.00.
  • Not completing a Form I-9 is a big deal if you are the subject of an ICE investigation, as it is a substantive violation and can serve as the basis for a fine.  Make sure you have a Form I-9 for all current employees and if you don’t, contact legal counsel experienced in I-9 compliance issues to address.
  • Not properly completing the Form I-9 is as serious as not presenting a Form I-9, depending on how poorly it has been completed.  There are two types of violations — substantive I-9 violations and technical violations which can be corrected.  Depending on what wasn’t completed on the I-9, an employer can be charged accordingly.  For instance, an employee not completing the attestation section in Section 1 is a substantive violation, which can lead to a fine.
  • If you are the subject of a government investigation for your I-9 compliance (i.e., you’ve recieved a Notice of Inspection and/or received an administrative subpoena from ICE) work with legal counsel experienced in I-9 compliance investigations.  Don’t go it alone.