The Department of Justice (DOJ) settled an immigration-related discrimination claim against the University of California, San Diego related to the unlawful re-verification of work authorized individuals. According to the press release, DOJ’s “…investigation concluded that the [University’s Resource Management and Plan Vice Chancellor Area] unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired.  The antidiscrimination provision of the INA prohibits such requests for documents when based on an employee’s citizenship status or national origin.”

Takeaway from this case — employees who present an unexpired permanent resident card when they originally complete the employment eligibility verification form (the “Form I-9”) do not need to present follow up documentation when their card expires.  If an employee is a lawful permanent resident, as a general rule they are permanently work authorized and employers do not need to complete section 3 of the Form I-9 to re-verify their expiring permanent resident card.  In a similar situation, employers should not update or re-verify expiring driver’s licenses for Form I-9 purposes.

Background screening is a key step in hiring and the onboarding process, but there are a litany of federal and state laws in the US that establish certain obligations on employers as well as provide applicants with certain rights, including from discrimination.

Join Montserrat Miller, Partner, Arnall Golden Gregory LLP, and iCIMS Genera Counsel, Neal Dittersdorf, on Thursday, May 10th at 3:00 pm EST for Remaining Compliant During the Background Screening Process, the latest webinar in iCIMS quarterly Compliance Webinar Series. During this session, attendees will learn about:

  • The requirement to get applicants consent through the disclosure & authorization form
  • The adverse action process
  • How Fair Chance Hiring laws affect employment screening
  • Pay equity laws
  • GDPR compliance

Click here to register.

Today U.S. Citizenship and Immigration Services rolled out an updated website for E-Verify.

E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS).

For a list of upcoming enhancements to E-Verify, click here.

Monitoring and Compliance (M&C) enforcement actions have increased since FY2014, when total compliance activity was 87,934 actions.  This number was the total number of Compliance Actions (e.g., emails, telephone calls, desk reviews and site visits) by M&C as well as Interagency Actions.  The same Compliance Activities for FY2017 stood at 130,006. The role of M&C is to protect E-Verify against system misuse through monitoring and compliance activities, such as identifying and resolving compliance issues, notifying employers of noncompliant behaviors, and offering compliance assistance in the form of emails, phone calls, desk reviews, and site visits.

Due to the federal government shutdown E-Verify — the electronic employment eligibility verification program that compliments the Form I-9 — is unavailable.  This means, among other things, that employers cannot access their E-Verify account during this time and until the federal government reopens. This will affect employers ability to enroll in E-Verify, create cases and address Tentative Non-Confirmations (TNCs).  The shutdown could end as early as today if Congress passes another stop-gap funding measure funding the government through February 8, 2018.

In the meantime, employers must still complete the Form I-9 for all new hires.  However, if you participate in E-Verify you will not be able to create a case and must do so when E-Verify is again available.  Read more about how to address the three business day window (which employers will not meet) for creating cases in E-Verify as a result of the federal government shutdown by clicking here.

California is on a roll with new employment-related laws effective January 1, 2018. The latest relates to salary history disclosures by job applicants. There is essentially a complete prohibition on an employer, either orally or in writing, personally or through an agent, seeking salary history information, including compensation and benefits, about an applicant for employment.  This applies to all employers (private/public) and the only exception is publically available salary history information. Background screeners and employers take note and check out section 432.3 of California’s Labor Code.

Another new law effective at the start of the year relates to immigration worksite enforcement and what employers cannot do and must do if they are the subject of a visit by immigration agents such as Immigration and Customs Enforcement (ICE) or the subject of an ICE investigation into their employment eligibility verification practices related to their Forms I-9.  Read more in this blog posting of mine.

On January 10 Department of Homeland Security agents raided 100 7-Eleven stores nationwide as part of an effort to ensure employees’ legal work authorization in the United States. This week’s raids stemmed from a 2013 investigation against multiple 7-Eleven franchisees and managers who allegedly employed undocumented workers in New York and Virginia.

Click here to read the Alert I wrote and what to expect if your company is the subject of a Department of Homeland Security worksite enforcement investigation and how to prepare.

I hope everyone is staying warm!

Please enjoy Friday’s edition of my Compliance News Flash with blurbs about:

  • California’s new immigration law which applies to employers
  • EU-U.S. Privacy Shield
  • Changes to background investigations by the National Background Investigations Bureau and Department of Defense
  • An update to New Jersey’s Ban the Box law
  • The return of Congress

Click here to read the Compliance News Flash.

Assembly Bill 450, signed by Governor Brown in October of 2017, is effective this month. It imposes several new immigration-related responsibilities on California employers with respect to worksite enforcement actions and compliance with the requirement under federal law to complete and maintain the Employment Eligibility Verification form (aka “the Form I-9”) for employees.

What employers need to know about the new law:

  • It affects public and private employers;
  • Employers (or their agent) cannot provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor unless they provide a judicial warrant;
  • Employers (or their agent) cannot provide voluntary consent to an immigration enforcement agent to access, review, or obtain an employer’s employee records without a subpoena or judicial warrant. However, there is a carve out in the law for the Form I-9 when Immigration and Customs Enforcement (ICE) agents present a Notice of Inspection (NOI).  Please note that an administrative agency such as ICE can issue subpoenas, meaning subpoenas are not always issued by a court;
  • Employers must provide notice (within 72 hours) to employees and if applicable their union representative, of any Form I-9 inspection by ICE as well as any other inspections of employment records conducted by an immigration agency;
  • Following up on above notice requirement to employees and their union representative, the new law has additional disclosure requirements which must be followed by an employer when requested by an affected employee.  Namely, an employer must, upon request, provide a copy of the NOI and any follow up documentation describing deficiencies identified as a result of the inspection by ICE (typically this would be the Notice of Suspect Documents or Notice of Discrepancies, both issued by ICE);
  • It limits re-verification of employees employment authorization unless specified by federal immigration law; and
  • Allows for civil penalties for non-compliance ranging from $2,000 – $10,000.

All of which is to say that employers in California should have a plan in place to address worksite enforcement actions by ICE agents so as to ensure that agents are not allowed access to nonpublic areas of a place of employment unless they provide a judicial warrant allowing such access.  This plan of action to address office visits by ICE isn’t limited to California employers. As a general rule employers should have a plan in place that when ICE agents arrive at a place of employment to deliver a NOI they are escorted to a private conference room or office and the NOI is handled by a manager or supervisor.  The NOI is the document that starts an administrative worksite enforcement action by ICE and by law, employers are provided with three business days to provide ICE with the Forms I-9 and other documentation listed in the NOI. Employers should train personnel to never waive the three business days requirement to provide ICE with the Forms I-9.  Also, train personnel to not allow ICE agents to interview employees short of a warrant. Finally, as a general rule employers should not handle worksite enforcement investigations without the assistance of legal counsel, especially in the current environment that will focus more heavily on penalizing employers for their failure to comply with the immigration requirements to hire and maintain a legal workforce.

Any questions about California’s new immigration law or ICE worksite enforcement actions please do not hesitate to contact me at montserrat.miller@agg.com.