Surviving an OSC Investigation – 3 Ways to Prepare

Last June, we reported that the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices filed suit against Tuscany Hotel and Casino LLC, a hotel and casino located in Las Vegas, Nevada, alleging the company had discriminated against its non-U.S. citizen employees. Last, week, the OSC entered into a settlement with Tuscany Hotel and Casino whereby Tuscany agreed to pay $49,000 in civil penalties to the U.S. government, along with back wages to aggrieved employees.

With each new lawsuit filed by the government, we couldn’t help but wonder what employers could proactively do to ensure they avoid OSC investigations or successfully overcome them. Today, we’re providing our readers with Three Rules of Thumb to avoid the pitfalls of a government investigation:

Accessing Key Resources and Utilizing the Right Tools

In the past, we’ve pointed out how critical it was for employers to access key resources to point them in the right direction when it comes to compliance with the law. Last month, we provided alist of legal authorities on the field of immigration law. In August, we wrote about the Top Ten I-9 and E-Verify Resources. Though, when it comes to the law, we realize it’s not quite that straightforward, which is why we also provided our readers with a How-To guide on selecting the right legal counsel.

According to our latest reader poll for October (as of yesterday, October 15th), 85% of our readers who took the poll indicated they were using legal counsel but a whopping 15% are still charting the I-9 waters solo. While legal expertise is critical, employers find that having the right tools can improve their chances of full-compliance, including a robust suite of I-9 and E-Verify software. Read why employers opt for an electronic I-9 and E-Verify system. How do employers vet the right software?

Knowing what questions to ask can help smooth the way to identify the right solution for your organization. However, it’s important to consider more than just the cost of software but the overall benefits when conducting a cost-benefit analysis.

Providing Initial and Remedial Training

Once you’ve lined up legal expertise and the right software, execution is key. In the many years LawLogix has been assisting employers with the onboarding of their I-9 records (either from a paper process or from another electronic vendor), invariably employers have always recruited the assistance of legal counsel (whether in-house or outside counsel) to help them set up I-9 training. Tailored training addressing an organization’s business process and needs is imperative in order to ensure compliance. Your counsel should be able to help your organization address training that falls within company budget, logistical issues especially with regards to remote hires, as well as how to behave in the event of an ICE audit or OSC investigation.

Adopting Policies that Follow the Law

Having an overarching compliance policy that reflects an organization’s culture and priorities will help the organization avoid being caught unprepared during an ICE audit or any other government investigation. How often should your organization conduct an internal audit? Who would be in charge of such an audit? Should an independent auditor be used? What procedures should be implemented to manage issues of unauthorized workers? For larger, public companies, what procedures should be implemented to ensure that reporting I-9 processes fits within the legal framework of SEC and Dodd Frank? What procedures should be implemented to address stakeholder concerns should I-9 compliance ever become an issue? What about potential negative publicity? Which departments will be in charge of training, retraining, discipline, auditing, and other functions? If disciplinary action is needed, how should it be administered and when?

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As you can see, I-9 (and increasingly E-Verify) compliance entails addressing many larger issues that involve executive leadership. No longer is I-9 just another government form but a universe unto itself demanding more of your attention. How prepared is your organization if it were ever to be investigated by a government agency?