Justice Department Complaint Reveals Electronic I-9 Compliance Failures
Two weeks ago, the Justice Department announced the latest I-9 related law suit against Rose Acre Farms, a major U.S. egg producer headquartered in Indiana. As detailed in our earlier blog on the subject, the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) accused Rose Acre of requesting excessive I-9 documentation from newly hired non-U.S. citizens. While the DOJ’s press release was scant on details, the underlying message was all-too-familiar for employers: OSC will vigorously investigate all complaints of unfair immigration related employment practices which occur during the I-9 process. Or put more simply: employers cannot and should not demand specific I-9 documents for review.
But is there more to it than that? During the past couple of years, we’ve seen dozens of OSC settlement agreements with employers who went “too far” in their quest to comply with I-9 verification obligations. In most if not all such cases, the employer made a habit of requesting specific (or additional) documentation from a specific class of workers –as documented by employee manuals, trainings, and interviews with I-9 preparers. In the Rose Acre case, however, we have an entirely different “motivator” (if you will) which appears to have brought this case to light. And ironically, it’s the least human element of all – the company’s electronic I-9 software.
But wait a minute; can an over-zealous electronic I-9 system really get you into trouble, absent intent to discriminate? Read on for a closer look at the Rose Acre complaint and the implications for every employer considering (or already using) electronic I-9 software.
At the onset, it’s important to note that all of the facts described below are taken from the OSC’s complaint against Rose Acre, and are “alleged” to be true. Rose Acre may have an entirely different story which may (or may not) be released to the public. In the meantime, though, we’ll analyze the government’s position and view (which is always important to consider!)
Since at least July 2008, Rose Acre had been using an electronic I-9 process to complete I-9 forms and facilitate E-Verify submissions. Then, in or around June 2009, Rose Acre purchased and implemented a different electronic system – specifically, “a commercially-available electronic I-9 software program sold under the name of nowHire that integrated both the process of generating an electronic Form I-9 and access to the E-Verify program.”
According to the complaint, the nowHIRE software program guided users through the electronic I-9 process by soliciting information about a new hire and, based on the information provided, presented a series of additional informational screens (what is frequently referred to as a “wizard” interface). When a new hire was identified as a U.S. citizen, the nowHIRE software program provided a listing of all acceptable documents from List A, List B and List C. So far, so good. Now, here comes the kicker: when a new hire was identified as a non-U.S. citizen, the nowHIRE software program allegedly prompted the user to obtain information only from the List A document list.
Armed with information about the nowHire system, OSC went through the painstaking process of looking for patterns or trends to see whether the software actually caused “document abuse” in practice. As part of this analysis, OSC also looked to see how US citizens were treated by comparison. The results are listed below:
|Immigration Status of Worker||Total Number of Workers||Number of workers who produced a List A document|
|US Citizens||1,519||10 (0.66% of group)|
|Non-citizens||328||325 (99.1% of group)|
As described in our previous blog, it is unlawful for employers to treat newly hired workers differently during the I-9 process on the basis of national origin or citizenship status. This includes improperly requesting that employees produce more documents than are actually required under the law. Based on the statistics above (which show a very high rate of List A document production for non-citizens) and the alleged “non-compliant” practice in the nowHire system, it certainly looks like OSC has the makings of a case.
List A documents – more commonly used by Non Citizens?
The statistics above certainly reflect two very different I-9 document patterns: US citizens by and large did not produce a List A document, whereas almost all non-citizens did. While this certainly could be evidence of document abuse, it’s also important to note that certain non-citizens do not really have any viable alternatives to List A. For example, an employee in H, L-1, or F-1 OPT status will most likely be unable to produce an acceptable List C document that shows authorization to work in the U.S. So if Rose Acre had a substantial number of these individuals, then the statistics above are not that telling.
However, that’s not where I see the real danger in this case. As reflected in many recent OSC settlements, the class of non-citizen that most frequently trips up employers is the lawful permanent resident (LPR). Workers in LPR status can often readily produce an unrestricted social security card from List C, which in combination with a driver’s license or other List B document, can satisfy the I-9 requirements. So if it turns out that Rose Acre had any LPR employees who were disadvantaged by the nowHire system, this case could take a very interesting turn. To see a list of acceptable documents organized by status category, you can check out the USCIS “citizenship status/document matrix” here.
OSC Warns Employers about Overly Automated Electronic I-9 Software
What really makes this case interesting is that OSC actually addressed this very same issue in a Technical Assistance Letter which was released to the public in July of last year. In this letter, OSC responded to another electronic I-9 software vendor who had inquired whether it was discriminatory to shorten the list of available documents in section 2 based on the employee’s status in section 1. While noting that the agency could not offer an opinion on document abuse without a specific case at hand, the Acting Deputy Special Counsel clearly expressed concern by stating the following: “[I]f the list excludes one or more documents that an employee of a particular status may possess, the limitation of documents may also prevent that employee from presenting his or her valid document(s) acceptable for I-9 purposes.” While it’s unclear why this other I-9 vendor was asking this question, it certainly highlights the very slippery slope between aggressive I-9 compliance and “going too far”.
Is there another ICE shoe waiting to drop?
While we’re on the subject of over-zealous electronic I-9 systems, I also noticed a very interesting “statement of fact” in the Rose Acre complaint which warrants further discussion. Specifically, paragraph #17 noted “Like its prior procedure for completing electronic Form I-9 during its first year using the E-Verify program, Rose Acre’s human resources personnel fully controlled the input of information into the nowHIRE software program, and continued to input information for all sections of the Form 1-9 for all new hires.” (emphasis added).
If you’re an I-9 geek like me, you may have noticed that the complaint alleges that the company HR inputted information for “all” sections of the Form I-9. Does that mean the employer also inputted information for section 1? And if so, did the employer complete the preparer/translator section as is required under the regulations?
While it’s certainly possible that OSC did not mean to imply that the company completed section 1, it is worth noting that many electronic I-9 systems out there have failed to make the proper distinction between who should complete the various sections of the form. As a result, many systems (particularly those integrated into payroll, tax, and other HR applications) inadvertently encourage or lead an employer to complete all of section 1 on the employee’s behalf by using that “wizard” interface described above. Needless to say, this completely defeats the purpose of the section 1 attestation, and would most likely lead to a deeper investigation by ICE. As we’ve said on this blog many times before, electronic I-9 software really demands a deep legal review by an immigration attorney and a robust indemnification from the vendor of any errors or omissions caused by the system.
The case of Rose Acre farms is still unfolding, and it’s too soon to tell whether a finding of I-9 document abuse (based on a non-compliant electronic I-9 system) is actually warranted. Regardless though, the case certainly appears to have validated the OSC’s concern about over-automated electronic I-9 systems which naively attempt to “streamline” the process. Moreover, it should also serve as a wake-up call to employers who may be tempted to rely upon a vendor’s assertions that they are compliant without further investigation. There really is no substitute for doing your own homework, so employers are well-advised to research the issues, review at least 2 or 3 vendors, and ask the right questions when choosing an electronic I-9 system. Because when it comes to I-9 compliance, employers are inevitably on the hook.