Employer Suffers $320,000 Penalty for Telling Workers What Documents to Show When Hired

Posted July 1, 2015 on www.LawfulThoughts.com

Ms. Mehfoud is an attorney with Spotts Fain PC advising businesses regarding compliance, conducting internal investigations and representing businesses responding to administrative, civil and criminal investigations. 

The employment eligibility verification process (also known as the Form I-9 process) is no joke‒stray too far from the narrow path of do’s and don’ts and you’ll likely find yourself under investigation.  As the federal government has stepped up its enforcement aimed at employers failing to correctly verify identity and work authorization of its new employees, it has also increased its enforcement aimed at employers who go too far and create barriers that prevent work-authorized immigrants from working.

Recently, Luis Esparza Services, Inc. (LES), a farm labor contractor company, entered a settlement agreement with the Department of Justice to resolve an almost 2-year long investigation into its Form I-9 process.  Specifically, the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) was concerned with LES’ specification of documents employees must present.

According to the Settlement Agreement, OSC’s investigation found that LES engaged in unfair documentary practices during its Form I-9 process by requiring Lawful Permanent Residents to present specific documents because of their citizenship status.  Put another way, LES required green card holders to present their green cards for I-9 purposes.  Often these cases do not involve ill-intentioned employers.  In fact, quite the opposite is true‒in an effort to zealously adhere to the I-9 process, employers go too far.  There is no extra credit in the Form I-9 world for being overly compliant.  Regular Form I-9 training which includes how to appropriately verify as well as how to avoid discrimination is vital.  Many companies do not realize that the law prohibits them from specifying documents based on an employee’s citizenship status.

The LES investigation may have been prompted by E-Verify monitoring.  Unfortunately, for many companies, E-Verify statistics may cause an anti-discrimination investigation as many employees who are green card holders choose to present their green card for I-9 purposes, which is perfectly acceptable.  If, however, most of the employer’s green card holders have presented a green card for I-9 purposes, OSC may suspect discrimination even when none exists.

In addition to the $320,000 in civil penalties, LES must also pay back wages, undergo anti-discrimination training, revise its Form I-9 policies and procedures, and be subject to OSC monitoring for three years.

Compliance with the complex and intricate web of rules and restrictions governing the Form I-9 process (many of which cannot be found in the Form’s instructions or the USCIS’ Handbook for Employers) continues to challenge even the most sophisticated employers and carries with it the potential for significant consequences.

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Christine Mehfoud has over 13 years of experience advising companies regarding their compliance programs and defending them from government investigations.  She has substantial experience advising employers regarding employee eligibility verification compliance and defending employers facing civil and criminal worksite enforcement, including Form I-9 and E-Verify training and auditing, immigration compliance policies and procedures, Form I-9 Notices of Inspection, discrimination investigations and DOL visa fraud investigations.