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  • Bloggings: Company's Response to E-Verify Tentative Non-confirmation is Costly by Bruce Buchanan

    Bloggings on I-9 E-Verify Immigration Compliance

    Bruce Buchanan

    Company's Response to E-Verify Tentative Non-confirmation is Costly

    Diversified Maintenance Systems LLC (DMS), a Tampa-based provider of janitorial and facilities maintenance services, has agreed to settle a case with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), a part of the Department of Justice, resolving allegations that the company violated the anti-discrimination provision of the Immigration and
    Nationality Act (INA) when it failed to fully reinstate an employee in retaliation for asserting her right to work in the U.S.

    An employee alleged DMS failed to provide her with proper notice and instructions for contesting a tentative non-confirmation in E-Verify.  While the employee immediately visited the Social Security Administration (SSA) after receiving verbal notice of the initial data mismatch and instructions from her supervisor, the employee alleged the supervisor failed to give her the proper E-Verify paperwork which would have enabled the SSA to resolve the mismatch.   As a result, E-Verify provided an erroneous “final non-confirmation” to DMS, stating the employee was not eligible to work in the U.S.   

    Thereafter, DMS terminated the employee, and the employee contacted the E-Verify hotline for
    help.   An E-Verify agent notified DMS that the employee was authorized to work, but the employee’s manager refused to reinstate her, allegedly because she contacted E-Verify and asserted her right to work under the anti-discrimination provision of the INA.    

    The INA protects employees from discriminatory practices in the employment eligibility verification process, including E-Verify, and prohibits employers from retaliating against individuals who assert their rights or oppose a practice that is illegal under the provision. 

    Under the settlement agreement, DMS agreed to pay $6,800 in backpay and interest to the employee and a $2,000 civil penalty.  The company also agreed to training by the Justice Department on the anti-discrimination provision, and training by the Department of Homeland Security on proper E-Verify procedures.   

    This settlement is a wonderful example of how employers should obtain immigration counsel. Specifically, someone who is experienced in employment compliance to help them decide whether to implement E-Verify, guide them on its implementation and confer with when dealing with tentative non-confirmations.

     


    About The Author

    Bruce E. Buchanan is an attorney at the at Nashville Office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law, with an emphasis on immigration compliance for employers, and employment/labor law. Mr. Buchanan received his law degree from the Vanderbilt University School of Law in 1982 and a B.S. degree from Florida State University, where he graduated magna cum laude. Mr. Buchanan has been in private practice since 2003. Beforehand, he served as Senior Trial Specialist for the National Labor Relations Board for 20 years. He also served from 1991 to 2003 as Adjunct Professor at William H. Bowen UALR School of Law, where he taught courses in Labor Law and Employment Law. Mr. Buchanan was chair of the Tennessee Bar Association's Immigration Law Section from 2011 to 2012 and has been the editor of the TBA's Immigration Law Section Newsletter and the TBA's Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan is a frequent writer and speaker on immigration compliance as well as labor law, wage & hour law and proposed federal legislation. He is a member of American Immigration Lawyers Association (AILA) and serves as the Advocacy Liaison of the Mid-South Chapter of AILA. Mr. Buchanan also serves on the Board of Directors for the Nashville International Center for Empowerment (NICE) and is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors. Mr. Buchanan is admitted to practice in Tennessee, Florida, and Arkansas, before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuits and the U.S. District Courts for the Middle District of Tennessee and the Eastern and Western Districts of Arkansas.


    The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.
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