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.

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.

Below is a link to an article of mine published in HR Executive’s Recruiting Trends on October 31, 2017. In the article I provide insights on what small businesses can do to comply with increased immigration enforcement by Homeland Security around the employment eligibility verification form, known as the Form I-9, and company’s hiring practices.

Click here to read the full article.

 

This week’s Compliance News Flash features information on New York City’s pay equity law, stats on FCRA litigation, personnel moves at the Federal Trade Commission, news about a Form I-9 scam, and information about my presentation on developing a compliant background screening at my firm’s upcoming Employment Law Seminar in Atlanta.

Click here to read my News Flash.

The Trump Administration announced (click here and here) this week that it is phasing out the Deferred Action for Childhood Arrivals (DACA) program.   DACA is a program that allows certain individuals who came to the United States as children, who have continuously resided in the United States and are in school, graduated from high school or obtained a General Education Development (GED) certificate, or are an honorably discharged veteran of the military, to apply for benefits.  One important benefit is work authorization.   

What does DACA rescission mean for employers and the employment eligibility verification form (the “Form I-9”)?

DACA is a program implemented in 2012 under the Obama Administration.  It has provided relief from deportation to approximately 700,000 – 800,000 individuals who would otherwise be in the country unlawfully. Under DACA, beneficiaries removal (aka deportation from the United States) is deferred during the duration of the program.  Once the program ends, beneficiaries revert back to their original status and may be  subject to removal from the United States for being unlawfully present in the country.  The DACA program provides recipients renewable two-year term benefits, including an employment authorization document (EAD).  According to the DHS, DACA beneficiaries will be allowed to retain both their DACA status and their EAD until they expire.  DACA-issued EADs are due to expire this year, in 2018 and 2019.  On a case by case basis, U.S. Citizenship and Immigration Services (USCIS) will adjudicate properly filed pending DACA initial requests and associated applications for EADs which were filed and accepted as of September 5, 2017. Certain pending DACA renewal requests and associated applications for EADs where beneficiaries benefits will expire between September 5, 2017 and March 5, 2018 will be adjudicated if the renewal request is filed prior to October 5, 2017.   For more on renewing DACA benefits click here.

In many cases employers will likely not be aware that a particular employee provided an EAD pursuant to DACA as proof of work authorization.  For purposes of completing the Form I-9, a DACA beneficiary would have provided an unexpired EAD for a two year period.  This is a valid List A document for purposes of completing section 2 of the Form I-9.   Given that these EADs will begin expiring it is an important reminder for employers to have a system in place to monitor expiring temporary work authorization documents associated with Form I-9 completion.  Organizations policies and procedures must include a notification system whereby both the organization and the employee are aware and proactively addressing the fact that an individual’s EAD is expiring.  On or before the expiration date listed on the EAD, employers must re-verify the individual’s work authorization.  This re-verification is generally done in section 3 of the Form I-9.   Given that the DACA program is being phased out, current beneficiaries may not have a valid EAD once their current work authorization expires and may therefore not be eligible for continuing employment.

It is important to note that up until an employee’s current EAD expires, DACA beneficiaries are lawfully able to be in the United States and work.  The program is being phased out and not ended effective immediately.  However, once an employee’s temporary EAD expires—regardless of whether they are a DACA beneficiary or not—their continuing work authorization must be verified.  In some cases an individual employee may not be able to demonstrate continuing work authorization either in the form of a List A document (e.g., renewed EAD) or List B and List C documents (e.g., Driver’s License and Social Security Card).  When an employee cannot demonstrate continuing work authorization for purposes of the Form I-9, they must be terminated.  There is no grace period once someone’s temporary work authorization expires allowing them to continue their employment in the United States.  In fact, employers who continue to employ someone knowing they are not authorized to be employed in the United States may face civil and criminal penalties. Civil penalties for knowingly employing unauthorized aliens range from $539 – $4,313 per violation.

To be clear, current DACA beneficiaries holding a valid, unexpired EAD are authorized to work for any employer in the United States for the duration of time listed on their EAD.