Melanie V. Pate SHRM GT Annual Seminar April 8, Our Goals Today

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Kerry Banks
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employment eligibility verification process and the laws that prohibit

1 Preventing Discrimination During the Employment Eligibility Melanie V. Pate SHRM GT Annual Seminar April 8, 2014 Our Goals Today Educate you about the employment eligibility verification process and the laws that prohibit discrimination Provide examples of immigration related unfair employment practices Answer any questions you may have 1

2 Unique Issues in Arizona Employer use of E Verify is required Legal Arizona Workers Act (LAWA) SB 1070 and HB 2162 Immigration and Nationality Act Federal law makes it illegal for employers to knowingly hire persons who are not authorized to work in the United States. Focuses on employer s responsibility during the hiring process and potential fines for not complying. 2

3 INA Requirements (cont.) It is also illegal to continue to employ an undocumented worker or one who loses authorization to work in the U.S. Employers may hire anyone whose documents prove identity and work authorization in accordance with the Form I 9 requirements. But there s one more thing Congress recognized that employer sanctions might discourage the hiring of eligible workers if they looked or sounded foreign, so: The law also prohibits discrimination in hiring and firing on the basis of citizenship/immigration status or national origin. 3

not ask for specific documents or more documents than required Form I 9 Employee documentation

4 Three Basic Rules for Employers Complete the Form I 9 for every new employee hired after November 1986 Allow employees to show documents of their choice to prove identity and work eligibility Do not ask for specific documents or more documents than required Form I 9 Employee documentation establishes: Identity Employment eligibility Form I 9 must be completed within 3 days of date of hire 4

5 Form I 9: Section 1 Employee Form I 9: Section 2 Employer 5

employment eligibility OR List B: Documents that establish

6 Form I 9: Documents List Know Your A, B, C s See Form I 9 List A: Documents that establish both identity and employment eligibility OR List B: Documents that establish identity AND List C: Documents that establish employment eligibility 6

The Ugly Truth Employers might use the verification process to discriminate The INA and the Form I 9 specifically state that the employer cannot use this process to discriminate Types of Immigration

7 The Ugly Truth Employers might use the verification process to discriminate The INA and the Form I 9 specifically state that the employer cannot use this process to discriminate Types of Immigration Related Employment Discrimination Citizenship or immigration status discrimination: Unequal treatment because of citizenship or immigration status National origin discrimination: Unequal treatment because of nationality, including place of birth, appearance, accent and/or language 7

8 Which Employers are Covered? The U.S. DOJ/Office of Special Counsel enforces the INA s provisions against discrimination. All employers with four or more employees are covered for citizenship or immigration status discrimination. All employers with four to fourteen employees are covered for national origin discrimination (EEOC has jurisdiction for 15+ employees). So how can I avoid immigrationrelated discrimination? All applicants and employees must be treated the same, regardless of citizenship or immigration status! Be informed about what documents are (and are not) required by the Form I 9. Employers cannot have a U.S. citizen only hiring policy (unless required by law). 8

9 One More Step To comply with the Legal Arizona Workers Act, Arizona employers are also required to use the E Verify system. Effective January 2009, all federal contractors must use E Verify. Form I 9 Document Abuse and Retention Employers cannot specify which documents are acceptable from employees this is document abuse! Form I 9 retention for possible audit: Three years from date of employee s hire OR One year after employee leaves the job, whichever is later 9

Skip the Black Light No need for employers to authenticate documents If documents appear reasonably genuine and related to the person, the employer must accept them To do otherwise could be

10 Skip the Black Light No need for employers to authenticate documents If documents appear reasonably genuine and related to the person, the employer must accept them To do otherwise could be discriminatory Employees must present original documents Receipt Rule Employers may accept a receipt in lieu of a listed document A receipt is given when an employee is awaiting a replacement for a lost or damaged document Only valid for 90 days Must be presented when completing the Form I 9 10

11 Reverification and Rehires If employee provides a work authorization expiration date in Section 1, employer must reverify on or before the date provided. Complete Section 3 of Form I 9 when reverifying that employee is work authorized. Rehires within 3 years of original Form I 9: Employer can complete Section 3 or complete new Form I 9. Should we keep photocopies? Employers may, but are not required to, photocopy the documents presented. If copies are made, they should be kept for ALL new hires, rehires and reverifications. Employer must complete Section 2 even if they copy an employee s documents. Employer is still responsible for completing and retaining Form I 9 for every employee. 11

12 Trouble in Waterloo City of Waterloo, Iowa violated the INA when it imposed a U.S. citizenship requirement in its hiring process for entry level firefighters. City refused to consider job application on the basis of the applicant s status as a lawful permanent resident. 1/31/14: Justice Dept. settled with City for $13,000 in civil penalties and another opportunity for applicant to apply for job. Permanent Problem for Forever 21 Stores Company rejected a work authorized individual s Employment Authorization Document (EAD). Required her to produce a Permanent Resident Card (aka Green Card ) as a condition of employment. 8/14/13: Justice Dept. settled with Forever 21 $1,705 in back pay and $280 in civil penalties. 12

13 Document Abuse by Macy s? Macy s allegedly engaged in a pattern or practice of reverification document abuse against work authorized immigrants. Settlement agreement with DOJ provided for $175,000 in civil penalties, $100,000 in back pay for any injured parties, training and monitoring. This can cost your company big bucks!! It Even Happens in Arizona Maricopa County Community College District allegedly engaged in a pattern or practice of document abuse against non U.S. citizens in its hiring and employment eligibility verification process. 5/16/11: Settled with DOJ for $22,123 in back pay to two identified victims and $45,760 in civil penalties, along with training and oversight by DOJ for three years. 13

14 E Verify Employee receives a tentative nonconfirmation (TNC) if the information provided does not match or is incorrect. Does not mean the employee is not authorized to work. E Verify Employee must be allowed eight work days to contact SSA or DHS to resolve the situation. If the employee does so, an employer may not terminate the employee based on the tentative non confirmation of status. Must await a final resolution from E Verify, even if such final resolution takes longer than eight work days, and cannot take any adverse action against the employee while waiting for resolution. 14

Avoiding Retaliation Individuals who file charges with OSC or assert their rights under the INA are protected from intimidation, threats, coercion and retaliation.

15 Avoiding Retaliation Individuals who file charges with OSC or assert their rights under the INA are protected from intimidation, threats, coercion and retaliation. Consider the timing of adverse employment actions and train your supervisors about retaliatory behavior. Where do I go for help? Form I 9 related questions: U.S. Department of Justice The Office of Special Counsel for Immigration Related Unfair Employment Practices (TDD) 15

Where do I go for help? New Form I 9 and E Verify assistance can be found at: www.

16 Where do I go for help? New Form I 9 and E Verify assistance can be found at: Thank you for your time and participation! Please complete an evaluation. 16

U.S. Department of Justice Civil Rights Division

U.S. Department of Justice Civil Rights Division IMAGE Best Practice Establish and maintain appropriate policies, practices and safeguards to ensure that authorized workers are not treated differently