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.

On September 12th at 2 pm EST I will be presenting on a SHRM sponsored webinar entitled “What You Need to Know Now About Form I-9 and Immigration Enforcement.”   My co-presenter will be Mark Wobbe from Equifax.  Click here to read more about this upcoming free webinar.

Topics we will discuss include:

  • The new Form I-9 that is effective September 17, 2017.
  • Tips for mitigating potential risk as site visits and audits by U.S. Immigrations and Custom Enforcement (ICE) agents from the Department of Homeland Security increase.
  • Best practices for improving Form I-9 compliance during new hire onboarding.

I hope you can join us.

Employers take note that a new Form I-9 has been issued by the Department of Homeland Security. The Form I-9 was released July 17 and will be effective September 17, 2017.  Meaning, all employers must use the new version of the Form I-9 no later than September 18, 2017.  As of that date, prior versions of the form will not be acceptable.

In a nutshell the revised Form I-9 will (i) update List C to reflect the most current version of the certification or report of birth issued by the Department of State; (ii) make a change to the form’s instructions to remove “the end of” when describing the day on which Form I-9 completion is required; and (iii) make a revision to the name of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices to call it by its new name, the Immigrant and Employee Rights Section (IER). To read more about the changes please click here and see bullet point #4 and click here.

To view the Federal Register announcement click here.

Any questions please don’t hesitate to contact me – montserrat.miller@agg.com.

 

As my readers know, my legal practice covers advising organizations on both compliance with the Fair Credit Reporting Act as well as the Immigration and Nationality Act.  Background screening and immigration.  In the end, both federal laws address employee onboarding issues related to work authorization and background checks.

In addition to writing my (almost) weekly Compliance News Flashes, over the past few months I’ve written a series of bylines for different publications focusing on immigration-related worksite enforcement and how employers can protect themselves regarding their compliance with the employment eligibility verification requirements (i.e., the Form I-9). To facilitate compliance I thought it would be helpful to include these articles, as well as articles I’m quoted in along with a free webinar, in one blog posting with links.

Bylines:

  • The Record-Keeping Mistake You Could Be Making published in Construction Business Owner — “The Employment Eligibility Verification form—known as the Form I-9—is a deceptively difficult form for employers to complete, even though it is only two pages in length and its sole purpose is to document identity and work authorization. Proper completion of the Form I-9 is especially important in the industries with large workforces, given today’s environment. An employer’s good faith compliance with Form I-9 requirements can establish an affirmative defense to allegations of knowingly hiring unauthorized workers.”
  • Are Your Employment Practices Setting You Up for a Discrimination Claim? published in QSR Magazine — In an article published by QSR Magazine on April 18, 2017, Montserrat Miller helps leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).
  • Are Your Employment Practices Setting You Up for a Discrimination Claim? published in FSR Magazine — In an article published by FSR Magazine on April 18, 2017, Montserrat Miller helps leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).
  • Strategies to Maintaining a Legal Workforce as Concerns about Increased Worksite Enforcement Increase published in Georgia Contractor — see pages 30 and 31.

Quoted in:

Get Ready for More Immigration Audits,” Human Resource Executive Daily

In an article published by Human Resource Executive Daily on June 5, 2017, Montserrat Miller discusses immigration enforcement in the United States and how employers should prepare. “Make sure people on the front lines, such as receptionists, know what to do when an agent arrives. They also should know what documentation ICE agents are required to present when they arrive, and whom to summon for help, including HR leaders and legal counsel,” said Miller.

Immigration Enforcement Efforts Expected to Increase,” Society for Human Resource Management (SHRM)

In an article published by SHRM on May 18, 2017, Montserrat Miller is featured prominently in an article discussing how immigration enforcement related to the workplace–raids, audits and site visits–are likely to increase under the Trump administration and how audits will focus on visa fraud, not just Form I-9 violations.

Webinars:

In June I did a webinar for the Georgia Restaurant Association entitled Workplace Investigations by the Department of Homeland Security – Is Your Restaurant Ready?  — this free webinar is of general applicability and I encourage everyone to take advantage of free legal advice.

Compliance News Flashes:

If you’re interested in receiving the Compliance News Flashes (latest edition) please email me at montserrat.miller@agg.com. This newsletter provides quick blurbs on compliance issues related to background screening and immigration.