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.

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 recently fined Infosys Corporation (“Infosys”) $34 million dollars in a settlement related to the company’s immigration practices, including their use of nonimmigrant workers with temporary work authorization and their failure to properly maintain Form I-9 records for a two-year period.  For purposes of this blog, I will focus on the latter.

Below is the lead paragraph of the press release from the Department of Justice (“DOJ”):

“Infosys Corporation, an Indian company involved in consulting, technology, and outsourcing, has agreed to a civil settlement of allegations of systemic visa fraud and abuse of immigration processes by paying a record settlement amount and agreeing to enhanced corporate compliance measures, announced U.S. Attorney John M. Bales.  The $34 million payment made by Infosys as a result of these allegations represents the largest payment ever levied in an immigration case.”

Some interesting points about this case and the settlement agreement:

  • An Infosys employee and whistleblower received an undisclosed payment.  
  • Infosys, a technology company, is a publically traded company (Infosys Ltd).  This means it has certain responsibilities and obligations to its shareholders.  It also means that any non-compliance issues must be noted and addressed, including immigration non-compliance.   The Infosys Annual Report for 2012-2013 discussed this matter on pages 48 and 67 under the heading Litigation.
  • As if the investigation into their I-9 and other immigration practices wasn’t enough, as a part of the settlement, Infosys agreed to retain at its own expense an independent third-party auditor to conduct an audit of 4% of their Forms I-9 on an annual basis and prepare a report for the office that conducted the investigation into their practices – the U.S. Attorney for the Eastern District of Texas – for two years.
  • This investigation began with an I- 9 audit and grew from there.  Once the federal government is in, and assuming they have jurisdiction, companies need to be aware that other investigations may flow.
  • The fine amount could actually have been higher but for Infosys’s cooperation with the government during the investigation and the fact that it took proactive steps with respect to its compliance with U.S. immigration laws both prior to and during the investigation (e.g., using E-Verify).
  • According to DOJ, the investigation into Infosys’s I-9 practices showed that more than 80% of Infosys’s Forms I-9 forms for 2010 and 2011 contained substantive violations.   The settlement alleged that Infosys failed to properly maintain I-9s, including properly reverifying the work authorization status of employees.
  • In addition to the $34 million dollar settlement, legal fees associated with the settlement, future government audits and costs, and answering to shareholders is the fact that this story has traveled around the globe and been reported in major media outlets — Forbes, NPR, Wall Street Journal, Washington Post, NY Times, etc.  Just like you don’t want to be “that guy” … you don’t want to be “that company” that everyone is talking about in this way.

All of this is to say that now is a good time to consider an independent I-9 audit by experienced immigration counsel to consider your practices with respect to not only your Forms I-9 but also other areas affected by U.S. immigration laws.  In other words, a company’s practices around temporary workers in nonimmigrant status such as H-1B, L-1A/L-1B, TN, etc.  The importance of understanding how your I-9s are being completed and whether they are compliant is an important step toward risk mitigation.  Common errors that can lead to substantive violations include not having a Form I-9 for an employee hired after November 1986 or having the employee complete Section 1 but not completing Section 2 of the Form I-9.