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Is Your Organization Ready for an OSC Investigation?

In past articles, we’ve talked a lot about preparing for I-9 audits, which are conducted by the Immigration and Customs Enforcement (ICE) agency.  Yet, the Justice Department plays just as important of a role as ICE.

The Office of Special Counsel (OSC) is part of the Justice Department’s Civil Rights Division.  The OSC regularly investigate complaints, fielded by other agencies like the U.S. Citizenship & Immigration Service (USCIS), or by complaining parties, like employees, former employees or job applicants about potential immigration-related violations.

Truth be told, the OSC’s duties are much different than ICE.  Unlike ICE, which audits I-9 records, the OSC is charged with investigating complaints about the way an employer has managed its I-9 or E-Verify process.  Sometimes, the complaints are found to be without merit.  In those cases though, employers typically still undergo training and some form of remedial measures, including OSC webinar trainings and/or E-Verify tutorial trainings.

For investigations where the complaints are valid, employers are subject to even more remedial measures.  Where the complaints arose from employees (or former employees) who were harmed, it’s common for employers to pay back wages to those employees, and reinstate those workers if the workers agree to be reinstated.

Here are some common questions often asked about how the OSC conducts an investigation of an employer:

How does the OSC find out there has been a complaint about an employer’s practices or conduct?

Complaints can come from different sources, including job applicants, an employee, a former employee, a relative of an “injured” party, a citizen, or even another government agency like the USCIS.

Can the OSC impose penalty amounts on an employer the same way ICE imposes fines on I-9 form errors?

The OSC may and often do impose monetary penalties against employers who have been found to have violated the law.  The law is what gives the OSC the power to impose these fines.  The fines will vary, depending on the violation.

Why does the OSC often require employers to attend its webinar trainings on I-9 or E-Verify as part of remedial conduct for having violated the law?

One aspect of the OSC’s mission is also to educate and inform employers about the law, so that they avoid being in violation of the law in the future.  The OSC provides a plethora of educational webinars that are free, to employers.  If the violation of the law arose because the employer was not aware of what the law actually required, then training via webinars is a good way for employers to be better informed about their legal responsibilities when it comes to immigration-related discrimination, unfair documentary practices or retaliation issues.  Plus, the webinars do not cost money.

If the OSC were to investigate my organization because of a complaint, what type of interaction might I expect with the OSC?

It’s common for the OSC to contact an employer directly, either via telephone or in writing about a complaint.  In fiscal year 2012, the OSC made 192 informal phone interventions with employers.  Sometimes, these complaints are resolved via the phone.  When a more in-depth investigation is necessary, the OSC may conduct a more formal inquiry, such as contacting your organization in writing and requesting a review of certain documentation.  If the charges are serious, then the OSC may file an official complaint against an employer.  You can read more about the OSC here.

What should I do if my organization is being investigated, more formally, by the OSC?

Any inquiry by a government agency into your organization’s business practices can be stressful.  The best line of defense is to avoid being in this situation.  Attend the OSC’s webinar trainings to understand an employer’s responsibilities under the law and to proactively implement protocols that are in compliance with those laws.

Partner with an experienced immigration or employment attorney familiar with the laws that govern the Immigration and Nationality Act, 8 U.S.C. § 1324b to help your organization defend against any complaints. These allies will provide you with a realistic assessment of the strengths and weaknesses of your case, so that you can make an informed decision on when, or if, you should settle the case.

Human Resources Today