It took a few days, but the E-Verify system is down due to the partial government shutdown which started at 12:01 am Saturday the 22nd of December.  One of the agencies affected by the partial government shutdown is the Department of Homeland Security (DHS), which is the agency that runs the E-Verify program.  E-Verify and E-Verify services are offline and will remain so until the government is again funded.  This partial shutdown may continue into the new year so employers should prepare themselves by keeping track off all new hires during the shutdown so that cases can be created once the system is back online.

What does it mean that E-Verify is offline?  Employers and E-Verify Employer Agents will not be able to create cases in E-Verify. VERY IMPORTANT! Just because E-Verify is offline, it does not mean that employers do not need to complete the employment eligibility verification form (the “Form I-9”).  The requirement to complete and maintain the Form I-9 for all new hires within three business days of hire is a separate requirement and employers must continue to complete the Form I-9 for all new hires as well as re-verify the work authorization of employees whose authorization is expiring.  The lapse in government funding does not affect the Form I-9 requirement.

Back to E-Verify.  DHS issued this statement about the “three-day rule” and pending Tentative Non-Confirmations (TNCs) and how to handle such during the partial government shutdown.

From DHS: “We understand that E-Verify’s unavailability may have a significant impact on employer operations. To minimize the burden on both employers and employees, the following policies have been implemented:

  • The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
  • The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs….”

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.

Here’s a sneak peek at this week’s Compliance News Flash from AGG:

  • The California Supreme Court ruled on the constitutionality of the Investigative Consumer Reporting Agencies Act, which is relevant to California employers and their background screening process.
  • Still in California, a new law on its way to the Governor for signature will require software updates for certain consumer reporting agencies.
  • Employers note for purposes of the Form I-9 that the federal government has again auto-extended the work authorization period for Salvadorans and Haitians under the Temporary Protected Status program.
  • Another write-up about the new notice requirement under the Fair Credit Reporting Act related to security freezes.

Click here to read it.

Check out the latest Compliance News Flash with blurbs about:

  • The Justice Department’s recent settlement with the country’s largest egg producer related to violations of the anti-discrimination laws during the employment eligibility verification process.
  • A new requirement on consumer reporting agencies to provide specific language to a consumer requesting a file disclosure under the Fair Credit Reporting Act.
  • California legal protections for employees who seek to change their name and/or social security number after they legalize their immigration status.
  • Processors and Privacy Shield.
  • Brazil’s new data protection law.

Click here to read the Compliance News Flash.

Check out this week’s edition of the Compliance News Flash which includes blurbs about:

  • The increase in ICE workplace investigations, including around the Form I-9 and issuance of Notices of Inspection.
  • California’s Consumer Privacy Act and application to your company.
  • The future of the EU-U.S. Privacy Shield pact for cross-border transfers of personal data.
  • NAPBS annual survey on employment background checks.

Click here to read the News Flash.

Read the latest Compliance News Flash by clicking here.  Topics covered in the News Flash include:

  • Ongoing workplace investigations by Homeland Security regarding employers’ workforce;
  • The U.S. Supreme Court;
  • Tips for pre-employment screening of new hires and employees; and
  • Discrimination settlements related to the employment eligibility verification form (aka the Form I-9).

Any compliance related questions?  Please contact me at montserrat.miller@agg.com.

Have a safe and happy 4th of July!

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.

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.