Special Issues in Employment Law: Comprehensive Immigration Reform and Criminal Background Checks

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1 Procrastinators Programs SM Special Issues in Employment Law: Comprehensive Immigration Reform and Criminal Background Checks Brandon E. Davis, Phelps Dunbar LLP Course Number: Hour of CLE December 20, :30 3:30 p.m.

2 12/ 6/ 12 Phelps Dunbar At t orneys Search Result s Brandon Davis phelpsdunbar. com / at t or neys/ index. cf m?act ion=det ail&keywor ds=&f ir st _nam e=&last _nam e=davis&posi 1/ 3 Hom e» Attorneys» Search» Results» Brandon Davis Brandon Davis Associate Practice Brandon Davis practices in the areas of labor and em ploym ent and business, em ploym ent-based and fam ily-based im m igration. His em ploym ent litigation practice includes representing em ployers in the defense of em ploym ent related claim s, alleging retaliation, discrim ination and workplace harassm ent under federal and state statutes. He also handles EEOC charges and other adm inistrative com plaints through the adm inistrative and judicial process. As part of his im m igration practice, Mr. Davis represents em ployers and individuals in a wide variety of im m igration m atters including civil and crim inal worksite enforcem ent defense, visa petitions for em ployees, students, investors/traders, intracom pany transfers, and fam ily sponsored petitions. In this capacity, he has successfully represented em ployers and individuals in the following m atters: I- 9/E-verify Com pliance, Labor Certification, H-1B visas, H-2B visas, Conrad 30 Waivers, J-1 visas, I-130 Applications, Consular processing, Lawful Perm anent Resident applications and E-3 visas. In connection with his im m igration practice, Mr. Davis has frequently worked in tandem with Phelps Dunbar s white collar defense attorneys on im m igration m atters involving potential crim inal exposure. These im m igration m atters have covered a wide variety of regulatory, investigatory, and judicial m atters. As part of his adm inistrative practice, he also provides on-site and off-site com pliance training on im m igration laws and training on best practices for com pliance. RELATED INFORMATION News» Events» Publications» CONTACT Canal Place 365 Canal Street, Suite 2000 New Orleans, Louisiana T: F: brandon.davis@phelps.com SERVICE AREAS Im m igration» Labor and Em ploym ent» EDUCATION Tulane University Law School, J.D., 2005; Moot Court Board Associate Justice; Louisiana Trial Team Sem i-finalist - Louisiana Trial Com petition; Student Attorney - Tulane Crim inal Clinic Loyola University, B.B.A., magna cum laude, in Finance, 2001; Chief Justice - SGA Court of Review; Outstanding Sophom ore - Joseph A. Butts College of Business Adm inistration; Alpha Sigm a Nu ADMISSIONS Louisiana Mr. Davis also offers advisory and consultation services to com panies and institutions to assist them in com plying with the com plex im m igration regulatory requirem ents of the United

3 12/ 6/ 12 Phelps Dunbar At t orneys Search Result s Brandon Davis phelpsdunbar. com / at t or neys/ index. cf m?act ion=det ail&keywor ds=&f ir st _nam e=&last _nam e=davis&posi 2/ 3 States Citizenship and Im m igration Service, Departm ent of Hom eland Security, Departm ent of Labor, Social Security Adm inistration and Departm ent of State. Membership/Affiliations New Orleans Bar Association (Board of Directors); Louisiana State Bar Association - Leadership Class ( ); Federal Bar Association; National Bar Association Innocence Project New Orleans (Board of Directors) VIA Link (Board of Directors); Am erican Im m igration Lawyers Association Speeches/Publications Chamber of Commerce v. Whiting Ignites Em ploym ent-based Im m igration Reform, The Federal Lawyer, Volum e 58, Issue 7 (2011). Em ploym ent Im m igration Com pliance: Avoiding Crim inal Liability, presented at the Louisiana State Bar Association s Labor and Em ploym ent Conference (March 2010). Fundam entals of Em ploym ent Im m igration Com pliance, presented to the Am erican Bar Association s Equal Em ploym ent Opportunity New Orleans liaison com m ittee, which is com prised of governm ental em ploym ent lawyers and public and private sector em ployees in New Orleans (February 2010). Crim inal Prosecution for Em ployers Who Hire Illegal Aliens, Louisiana Bar Journal (Decem ber 2009/January 2010). How to Forestall the DOJ Raid for Illegal Aliens, presented at a Tulane University CLE (Decem ber 2009). How to Forestall the DOJ Raid for Illegal Aliens, presented at Phelps Dunbar s 2009 Texas Em ploym ent Law Sem inar (Novem ber 2009). How to Forestall the DOJ Raid for Illegal Aliens and How the Ledbetter Fair Pay Act Can Bring Old Discrim ination Claim s Back From the Dead, presented at Phelps Dunbar s 2009 New

4 12/ 6/ 12 Phelps Dunbar At t orneys Search Result s Brandon Davis phelpsdunbar. com / at t or neys/ index. cf m?act ion=det ail&keywor ds=&f ir st _nam e=&last _nam e=davis&posi 3/ 3 Orleans Em ploym ent Law Sem inar (Novem ber 2009). Im m igration Law Updates, presented to m em bers of the Louisiana Assisted Living Association and the Hom e Care Association of Louisiana at the annual state conference (Novem ber 2009). Governm ent Strengthens Em ploym ent Verification Obligations for Foreign Workers, New Orleans Bar Association s Briefly Speaking (Spring 2009). Governm ent Contracts and Im m igration, presented to RCI, Inc. (March 2009). Im m igration and I-9 Com pliance in the Workplace, presented to Am edisys Hom e Health Services (March 2009). Legally Em ploying Foreign Workers: Avoiding Crim inal (and Civil) Liability, presented at Phelps Dunbar s 2008 New Orleans Em ploym ent Law Sem inar (Novem ber 2008). Am erica s Im m igration Crisis: Exam ining the Necessity of Com prehensive Im m igration Reform, Loyola Law Review, Vol. 54 (2008). Investing in Am erica: Fundam entals of the E Category - Am erican Im m igration Lawyers Association National Conference, Orlando, Florida (June 2007).

2012 LABOR AND EMPLOYMENT SEMINAR NEWORLEANS, LA The Endless Debate Over Immigration and Criminal Background Checks Making the Right Choices (No One Said This Was Going To Be Easy): IMMIGRATION AND

5 2012 LABOR AND EMPLOYMENT SEMINAR NEWORLEANS, LA The Endless Debate Over Immigration and Criminal Background Checks Making the Right Choices (No One Said This Was Going To Be Easy): IMMIGRATION AND CRIMINAL BACKGROUND CHECKS Brandon Davis ELECTION UPDATES The Democratic Platform on Immigration ( Comprehensive immigration reform: undocumented immigrants turn themselves in, learn English, pay taxes and apply for visas; DREAM Act and deferred action to children; WORKSITE ENFORCEMENT; Prosecute immigrant criminals over immigrant non criminals Family reunification; Federal preemption; Inclusion of LGBT community in immigration benefits; Border is more secure now than at any time in past 20 years, unlawful crossings at 40 year low, and Border Patrol is better staffed than any time in history. 2

6 ELECTION UPDATES The Republican Platform on Immigration ( Supports rule of law and opposes any form of amnesty; Top priority is security at borders and ports of entry to prevent drug trafficking, illegal immigration and terrorism complete double layered fence on southern border; Supports humane procedures to encourage illegal immigrants to leave the U.S.; Opposes deferred action to individuals who came to the United States as children; Tougher penalties for document fraud; Long term detention for persons who cannot be deported; States rights; Mandatory E Verify; Mandatory SAVE (verification of lawful presence before receipt of government benefits and IRS refunds; English as official language; Visas to advanced degree holders; Guest worker program to meet labor needs 3 WHAT IS E VERIFY? No cost Internet based system Fast and easy to use Electronically verifies the employment eligibility of Newly hired employees Existing employees assigned to work on a qualifying federal contract Partnership between the U.S. Department of Homeland Security and the Social Security Administration 4

7 E VERIFY PROGRAM GOALS Reduce unauthorized employment. Minimize verification related discrimination. Be quick and non burdensome to employers. Protect civil liberties and employee privacy. 5 RESPONSIBILITIES OF AN EEA REMIND YOUR CLIENTS Obtain SSN for all employees. All List B documents must contain a photo. Copies must be made of Permanent Resident Cards, Employment Authorization Documents, U.S. passports/passport cards. 6

Complete Form I 9 for all employees, and obtain A Number for Permanent Resident and Alien Authorized to Work

8 YOUR CLIENT S RESPONSIBILITIES Unless your client is a federal contractor whose contract contains the FAR E Verify Clause, you can only use E Verify to verify new hires. Complete Form I 9 for all employees, and obtain A Number for Permanent Resident and Alien Authorized to Work attestations. Display E Verify and Office of Special Counsel posters. Must apply E Verify policies and procedures to ALL new hires, regardless of citizenship status. 7 POSTERS 8

FORM I 9, EMPLOYMENT ELIGIBILITY/E VERIFY Information from the Form I 9 is entered into E Verify. Use the most current version of the Form I 9 (Rev. 02/02/09 or 08/07/09 Exp. 08/31/2012).

9 FORM I 9, EMPLOYMENT ELIGIBILITY/E VERIFY Information from the Form I 9 is entered into E Verify. Use the most current version of the Form I 9 (Rev. 02/02/09 or 08/07/09 Exp. 08/31/2012). Form I 9 must include the employee s social security number before the case can be created in E Verify. If employee chooses to present a List B document, it must contain a photograph. You must continue to update Form I 9 as required, and reverify the employment authorization status, even if you use E Verify. For more I 9 information, visit 9Central. 9 WHEN TO E VERIFY You must enter Form I 9 information into E Verify for all newly hired employees no later than the third business day after the employees start date. 10

10 INITIAL VERIFICATION RESULTS WILL INDICATE: Employment Authorized SSA Tentative Nonconfirmation DHS Verification in Process The employee is authorized to work. There is an information mismatch. DHS will usually respond within 24 hours with either: Employment Authorized or DHS Tentative Nonconfirmation. 11 HANDLING A TNC CLIENT REMINDER Client/representative must inform the employee of the TNC. Client/representative must print the TNC Notice and review it with the employee. CONTEST NO CONTEST Refer employee to appropriate agency You may terminate the employee and close the case in E Verify 12

11 HANDLING A TNC CLIENT REMINDER The employee has eight federal government workdays from the referral date to visit or call the appropriate agency to begin resolution process. The employee continues to work during the TNC resolution process. During the TNC process, DO NOT take any adverse action against the employee. 13 TNC RESOLUTIONS You should check E Verify periodically for one of the following responses: Employment Authorized Review and Update Employee Data Case in Continuance DHS Verification in Process DHS No Show Final Notification 14

12 AVOIDING E VERIFY RELATED EMPLOYMENT DISCRIMINATION Do not use E-Verify to prescreen applicants; Do not use E-Verify to verify current employees unless federal contractor; Do not use E-Verify to reverify expired employment authorization; Permit employees to contest TNC and provide notices to government; Allow employees 8 federal work days to resolve TNC issues; Allow employees to work while contesting TNC; Do not take final action against an employee unless and until the employee receives a Final Nonconfirmation 15 HOW TO COMPLY WITH ANTI DISCRIMINATION LAWS Anti-discrimination provisions of immigration laws enacted under Immigration Reform and Control Act of 1986; Employers must not discriminate among job applicants based on citizenship status or nationality; Immigration-Related Unfair Employment Practices DOJ Guidance 7/6/2012 Treat work-authorized job applicants equally in recruiting and hiring without regard to their citizenship status or national origin; Understand that in addition to U.S. Citizens, there are many classes of immigrants who are authorized to work in the United States; If a certain position requires a special citizenship status, carefully review the legal support for such a requirement before posting the job advertisement. 16

13 HOW TO COMPLY WITH ANTI DISCRIMINATION LAWS Immigration-Related Unfair Employment Practices DOJ Guidance 7/6/2012 Avoid Unjustified Discriminatory Language in Job Postings: Only U.S. Citizens Citizenship Requirement Only U.S. Citizens or Green Card Holders H-1Bs Only, OPT Candidates Only/Preferred, etc. Must have a U.S. Passport Must have a green card I-9 qualifying identification required at time of application Avoid job requirements related to an individuals national origin (i.e., language fluency requirements) unless necessary to perform job effectively 17 HOW TO COMPLY WITH ANTI DISCRIMINATION LAWS Complete Form 1-9 Timely and Accurately Do not demand to see documents when new hire completes Section 1; Do not demand a social security number in Section 1 unless E-Verify User; Do not specify which List A, B or C documents the job applicant must produce; Do not reverify the following documents: An expired U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card, or a List B document that has expired; Do not fill out I-9 for independent contractors or their employees; Do not accept expired documents; Do not accept SSA printouts only accept cards and receipts; Do not accept photocopied documents only accept original documents; Do not refuse to hire based on future employment authorization; 18

14 HOW TO COMPLY WITH ANTI DISCRIMINATION LAWS Complete Form 1-9 Timely and Accurately You may terminate an employee who fails to produced I-9 documents within three business days of the date employment begins; You must examine documents to determine whether they reasonably appear to be genuine; You should be on guard for inconsistent documents (green card from alleged U.S. citizen); You may accept a receipt for an applied for document employee must present the document in 90 days; You may not accept a receipt for an applied for employment authorization document; You must allow the employee to present any document for reverification purposes. 19 THE POTENTIAL PITFALLS OF EMPLOYEE CRIMINAL BACKGROUND CHECKS

related 21 INCARCERATION RATES/DISPARATE IMPACT DISCRIMINATION African American Men 1 in 3 will serve time in prison in lifetime

15 EEOC ENFORCEMENT GUIDELINES ON USING ARREST AND CONVICTION RECORDS IN EMPLOYMENT DECISIONS 92% of Employers use some form of criminal background checks Employee theft/workplace violence Potential Title VII Liability Greater burden on employer to show reliance is job related 21 INCARCERATION RATES/DISPARATE IMPACT DISCRIMINATION African American Men 1 in 3 will serve time in prison in lifetime Hispanic Men 1 in 6 will serve time in prison in lifetime White Men 1 in 17 will serve time in prison in lifetime 22 Bureau of Justice Statistics

THE EMPLOYER S DILEMMA No current Federal law currently prohibits

employers to use criminal records in employment related decisions EEOC lacks

hypothetical 23 THE EMPLOYER S DILEMMA $3.

reasonable cause that company s criminal background check policy

16 THE EMPLOYER S DILEMMA No current Federal law currently prohibits consideration of criminal convictions [L]egal and in most cases, prudent for employers to use criminal records in employment related decisions EEOC lacks authority to issue binding guidelines Threat of litigation/liability not hypothetical 23 THE EMPLOYER S DILEMMA $3.13 Million Pepsi settlement of EEOC race discrimination charge Finding of reasonable cause that company s criminal background check policy disproportionately excluded 300+ African Americans from employment Exclusions based on arrests pending prosecution and minor offenses 24

COMPLIANCE WITH EEOC GUIDELINES General assumption that those with criminal records are more likely to commit crimes is not enough to prove that employment exclusions based on a criminal history are:

Provide an individualized assessment for people excluded by the screen to determine whether the policy as applied to the individual is job related and consistent with business necessity.

17 COMPLIANCE WITH EEOC GUIDELINES General assumption that those with criminal records are more likely to commit crimes is not enough to prove that employment exclusions based on a criminal history are: (1) job related and (2) consistent with business necessity. Develop targeted screening policies to analyze each hiring decision based on the individual s particular criminal history. Provide an individualized assessment for people excluded by the screen to determine whether the policy as applied to the individual is job related and consistent with business necessity. Blanket exclusion policies considered Title VII violation. 25 FACTORS TO BE CONSIDERED IN CRIMINAL HISTORY SCREEN PROCESS The nature and gravity of the offense The amount of time since the conviction The relevance of the offense to the type of job sought 26

INDIVIDUALIZED ASSESSMENT FACTORS The facts or circumstances surrounding the offense or conduct The number of offenses for which the individual was convicted Older age at the time of conviction, or

18 INDIVIDUALIZED ASSESSMENT FACTORS The facts or circumstances surrounding the offense or conduct The number of offenses for which the individual was convicted Older age at the time of conviction, or release from prison Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known elements of criminal conduct The length and consistency of employment history before and after the offense or conduct Rehabilitation efforts, e.g. education/training Employment or character references and any other information regarding fitness for the particular position 27 IS EXCLUSION JOB RELATED AND CONSISTENT WITH BUSINESS NECESSITY? 28

EMPLOYER BEST PRACTICES UNDER EEOC GUIDELINES Your application should not ask questions about criminal history. Don t inquire into criminal history until a conditional decision to hire has been made.

19 EMPLOYER BEST PRACTICES UNDER EEOC GUIDELINES Your application should not ask questions about criminal history. Don t inquire into criminal history until a conditional decision to hire has been made. Document the reasons you considered certain convictions to be job related and consistent with business necessity for each position. Limited criminal background checks to seeking information only on crimes that you have identified as job related and consistent with business necessity. Eliminate blanket policies or practices that exclude people from employment based on any criminal record, except to the extent required for employment with the federal government. 29 EMPLOYER BEST PRACTICES UNDER EEOC GUIDELINES Develop a narrowly tailored written policy and procedure for screening applicants and employees Identify essential job requirements and the actual circumstances under which the jobs are performed. Determine the specific offenses that may demonstrate unfitness for performing such jobs. Identify the criminal offenses based on all available evidence. Determine the duration of exclusions for criminal conduct based on all available evidence. Record the justification for the policy and procedures. 30

EMPLOYER BEST PRACTICES UNDER EEOC GUIDELINES Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with

20 EMPLOYER BEST PRACTICES UNDER EEOC GUIDELINES Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with Title VII. Keep information about applicants and employee s criminal records confidential. Only use it for the purpose for which it was intended. 31 QUESTIONS? 32

21 2012 LABOR AND EMPLOYMENT SEMINAR NEWORLEANS, LA The Endless Debate Over Immigration and Criminal Background Checks Making the Right Choices (No One Said This Was Going To Be Easy): IMMIGRATION AND CRIMINAL BACKGROUND CHECKS Brandon Davis

Form I-9 and E-Verify

Form I-9 and E-Verify Session Number 000 Delycia Hofmann U.S. Citizenship and Immigration Services Management & Program Analyst Agenda Form I-9 Requirements, Sections 1, 2, and 3 Storage and Retention