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.

Read more about this in an article I wrote, published by FSR Magazine on April 18, 2017, which is intended to help leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act.  The insights provided in the article are equally applicable to other industries and types of employers.

Click here to read the article.

 

Today’s fun fact – as an employer you cannot ask employees to provide a specific document or documents when completing section 2 of the Form I-9 (the Employment Eligibility Verification form).  Remember, all employers must complete a Form I-9 for new hires within three business days of hire.  Section 2 of the Form I-9 is where the employee must present the employer with documentary proof of identity and work authorization by selecting a document, or documents, from the Lists of Acceptable documents. Employers cannot tell employees what document(s) to present.  As an employer, your responsibility is to show the list to employees and have them select which document(s) they will present for section 2 completion.

Why is this a problem?  Because, when an employer requires certain documents from some individuals but not others this can lead to a claim of discrimination under the Immigration and Nationality Act (INA). Discrimination based on national origin or citizenship.  These types of claims are handled by the Department of Justice’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices.

To prove my point, the Department of Justice recently settled an immigration-related discrimination claim against a pizza restaurant franchisee with 31 locations in Florida for $140,000. Why? Well, the allegation was that the employer routinely requested that lawful permanent residents produce a specific document to prove their work authorization—their permanent resident card—while not asking the same of U.S. citizens. This is not acceptable.

And, as if paying a civil penalty of $140,000 isn’t enough, under the terms of the settlement, the pizzerias must “post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.”  In addition to the civil penalties, factor in attorney’s fees for legal representation.

A quick refresher on completing section 2 of the Form I-9 for someone who checks in section 1 of the Form I-9 that they are a lawful permanent resident (aka “green card holder”). That employee may then, for purposes of completing section 2, present either a permanent resident card (a List A document) or a driver’s license and unrestricted Social Security Card (List B and List C documents). Just because they say they are a lawful permanent resident does not mean they must provide their permanent resident card.  An employer cannot tell that individual what specific document(s) to present. The Lists of Acceptable Documents are part of the Form I-9 which can be found on U.S. Citizenship and Immigration Services website.

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.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (part of the Department of Justice) issued a two-page best practices guide for Job Postings.  Employers should be familiar with the do’s and don’ts of job postings, whether online or in the newspaper.  Language such as “U.S. Citizens Only” or “We Prefer H1B Workers” is suspect and in some instances illegal because it can lead to discrimination based on citizenship or national origin.

For more about job postings read my post from April 12th — Acceptable Job Posting Language and Compliance with Anti-Discrimination Laws.