Apologies, I’m a little behind the curve on this so you will see two Compliance News Flashes this week.

This particular Compliance News Flash we drafted covers the following topics:

  • Employers getting into hot water over the types of documents they request from employees when completing the Form I-9, leading to claims of discrimination.
  • The Bureau of Consumer Financial Protection is on track to have the least (that’s right, least) amount of enforcement actions on record.
  • An enforcement action by the Equal Employment Opportunity Commission (EEOC) related to race discrimination and the use of criminal history information for employment screening practices.

On Monday, June 5 from 2:00 to 3:00 pm EST I will conduct a free webinar on “Workplace Investigations by the Department of Homeland Security – Is Your Restaurant Ready?”  The webinar is sponsored by the Georgia Restaurant Association.  Much, if not all, of what I’ll be discussing regarding employers compliance with immigration laws during the hiring process relates to all employers and isn’t limited to restaurants.  During the webinar I will discuss the following topics:

  • Factors leading to a workplace investigation by DHS – ICE
  • How to prepare for a workplace investigation by ICE
  • How to respond to a Notice of Inspection
  • What happens during an ICE audit
  • The role of the Department of Justice in workplace investigations
  • Collateral consequences of workplace investigations

Click here to register.

New York Attorney General Eric T. Schneiderman recently announced settlements against two major retailers (Big Lots Stores and Marshalls) for violations of Buffalo’s “Ban the Box” ordinance at local stores.  Click here to read the announcement.   In addition, the stores agreed to pay fines of $100,000 (Big Lots) and $95,000 (Marshalls).

State and local Ban the Box laws generally prohibit an employer from inquiring on a job application about a candidate’s criminal history.  That inquiry must generally wait until after a conditional offer of employment.  Buffalo is one of three major cities in New York with such a law on the books (New York City and Rochester are the other two).  Note that each Ban the Box law should be read individually as although there are similarities, there are also nuances to each.

Employers in Buffalo — the Ban the Box law applies to public and private employers with 15+ employees.  It states that you cannot inquire on a job application or prior to an initial interview about criminal history.  In addition, because Buffalo is in the state of New York, Article 23-A of the New York Correction Law also applies, specifically when considering an applicant’s prior criminal convictions in determining suitability for employment.  See Article V: Fair Employment Screening to learn more about this potentially unlawful discriminatory practice in Buffalo.



Switching gears from background screening and immigration compliance, I want to share information about an upcoming webinar featuring my colleague, Ashley Kelly. The title of the complimentary webinar is: Navigating New Legal Developments on Same-Sex Marriage, Transgender Rights, and Pregnancy Discrimination: What Employers Need to Know.

I hope you will join her on September 17th.  For more information and to register, click here.

What’s an employer to do if you think a new hire is possibly showing you a fraudulent document for purposes of the Employment Eligibility Verification form (Form I-9)?  That’s a tough one because the only guidance employers are provided is that they can only “reject a document presented by an employee if the document does not reasonably appear to be genuine or relate to the person presenting it”.  The latter part of the equation is easy, it’s the former that’s tough — the reasonable person standard.  On its website, US Citizenship and Immigration Services (USCIS) states the following:

“Employers are not required to be document experts. They must accept documents that reasonably appear to be genuine and to relate to the person presenting them. However, if a new employee provides a document that does not reasonably appear to be genuine, the employer must reject that document and ask for other documents that satisfy the requirements of Form I-9. The standard used for determining whether a document is genuine is whether a reasonable person would know that the document is fraudulent.” 

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a technical assistance letter in November which confirms the above statement on USCIS’ website.  So nothing new there.  However, one interesting point is that it opines on a company’s “honesty/dishonesty policy” and states that “consistent application of a dishonesty policy would not constitute a per se violation of the anti-discrimination provision.”   The example OSC cites — which is not an unusual circumstance — is where an employer rejects someone who is presently work-authorized but was previously not work-authorized and presented fraudulent documents during the hiring process.   Assuming your company has an (dis)honesty policy and you apply it consistently, this recent OSC letter may be helpful in those situations. 

But returning to the issue of when a document is valid, or not, for purposes of the Form I-9.   Unfortunately that can be highly subjective.  My advice is don’t over-think it but also don’t pretend to be a forensics expert thinking you’re on NCIS or a similar made for TV crime show.  Unfortunately identity theft is a problem and some knockoffs are of extremely high quality.  Now, if you receive a document that looks like a 1st grader slapped it together in art class then perhaps you should give it more thought.  Finally, if you don’t want to run afoul of the anti-discrimination provision of the immigration law don’t be hyper vigilant about new hires with a foreign name or foreign appearance and barely pay attention when John Smith presents his documents.

Happy Election Day!  The Office of Special Counsel (OSC) has joined with the United States Citizenship and Immigration Service (USCIS) to present webinars on employee rights during the E-Verify and Form I-9 employment eligibility verification processes

The first two joint OSC/USCIS employee rights webinars will be held:

  • November 13, 2012 at 2:00 pm EST
  • November 15, 2012 at 2:00 pm EST. 

Sign up to attend a free webinar brought to you by OSC and USCIS.

If you are in Atlanta or the Atlanta area, please join me and my colleagues at the upcoming 2012 Employment Law Seminar hosted by my firm Arnall Golden Gregory LLP.  This is a great conference if you want to learn more about strategies for effectively managing your workforce in an environment that is becoming increasingly challenging for employers.
  • Conference Title— Managing the Modern Workforce
  • Date— October 10, 2012 (8:00 am – 1:30 pm)

I will be speaking about background checks and the EEOC, as well as immigration compliance and best practices for forms I-9 and E-Verify and how to avoid running afoul of the anti-discrimination provision of the Immigration and Nationality Act. For a complete agenda and to register, click here.  It’s free and we feed you (not once but twice).   Please join us next week as we discuss immigration, health care, background screening, restrictive covenants, the National Relations Labor Board and the use of social media in the workforce.

I’m a speaker at the upcoming Federal Bar Association Chicago Chapter’s 7th Annual Workplace Enforcement and Immigration Program.  If you are in Chicago please join us. View the agenda and register by clicking here.

Conference Title — What You Should Know about Workplace Enforcement and Immigration

Date — October 16, 2012 (8:30 am – 5:00 pm)

This is a great conference if you want to learn more about corporate immigration compliance, employer self-audits of forms I-9, Immigration and Customs Enforcement (ICE) and worksite enforcement, E-Verify, best practices, immigration due diligence during mergers and acquisitions (M&A), how to deal with remote hires and the form I-9, etc., etc., etc. 

My panel is on Counseling Corporate Compliance in Today’s Climate — how to deal with constructive knowledge situations, issues arising from Deferred Action for Childhood Arrivals, best practices and the Office of Special Counsel, due diligence in M&A situations and immigration issues related to publicly traded companies.  I’m joined by some fantastic and very knowledgeable speakers and I’m sure it’ll be an all around good experience for all!

The Department of Justice (DOJ) Office of Special Counsel (OSC) recently announced that it will be holding an OSC stakeholder input session regarding Form I-9 audits by employers on September 13th at 2:00pm EST.  DOJ stated that the session will focus on guidance that it is presently drafting, “Best Practices for Employers Conducting Self-Audits of I-9 Forms.”  The session will solicit public comment on areas of concern or confusion for employers engaged in self-audits, and concerns that employees or employee groups have when employers conduct audits.

To participate in the September 13th Stakeholder Input Session, dial (888) 790-2054, and use the passcode “AUDIT.”

The importance of attending this stakeholder session is to express concerns, comments and ideas related to an employer’s ability to conduct an internal self-audit of its Forms I-9, which is considered a Best Practice by Immigration and Customs Enforcement.   OSC’s involvement in this area, and their consideration of issuing guidance is relevant so that employers and employees understand what is/is not appropriate when conducting self-audits so as to not fun afoul of the anti-discrimination provisions of the Immigration and Nationality Act.