Back in September, we broke the story of the Justice Department’s Civil Rights Division Office of Special Counsel (OSC) issuing what appeared to be the first public penalty case related to E-Verify non-compliance against a Florida janitorial company. It seems the OSC is at it again!
On Monday, December 3, 2012, the OSC issued another penalty case, this time, to ComForcare In-Home Care & Senior Services (ComForcare) of Tigard, Oregon, a provider of in-home healthcare for sick and elderly patients.
The Facts as Alleged in this Case
According to the press release, all facts described below are alleged in this case. It appears ComForcare violated three cardinal E-Verify rules:
First: After ComForcare initiated an E-Verify case for a newly hired employee that resulted in a tentative nonconfirmation (TNC), it failed to provide that employee with the TNC documentation and an opportunity for the employee to contest the TNC.
Employers who enroll in the E-Verify system enter into a Memorandum of Understanding (MOU) with the government. One of the terms of the MOU is to follow the rules and regulations of E-Verify, including providing employees with the TNC documentation and allowing employees an opportunity to contest TNCs.
Second: After the TNC, ComForcare “demanded that [the employee] produce an ‘alien card’ and then demanded to see her naturalization papers when she indicated she was a U.S. citizen. [Only legal permanent residents in the U.S. would be issued a permanent resident card, which is usually relinquished upon naturalization.]
Notably the employee had already produced acceptable documents during the Form I-9 stage of hiring. A demand for additional identity and employment authorization documents violates the law. In its press release, the OSC was also eager to remind employers that employers may not “request additional documentation based on a tentative non-confirmation.”
Third: When the employee was unable to furnish the documents demanded, ComForcare refused to allow her to begin work.
Again, E-Verify rules require employers to allow employees to continue working while a TNC is being resolved.
Aggravating Factor: The OSC’s investigation also revealed that ComForcare targeted non-U.S. citizen employees (or those perceived to be non-U.S. citizens) to produce certain types of documents, rather than allowing these employees the choice of documentation to present during employment eligibility.
ComForcare eventually settled this case by agreeing to pay approximately $525 in back wages and a civil fine of $1,210. Other conditions included HR training to avoid employment eligibility verification discrimination and reporting and compliance monitoring by the Justice Department for 18 months.
Although the penalty and back wages are modest, the repercussions from the publicity and the prolonged government audit period (18 months) are aspects the company would rather move past.
Yet, this case is not so unique and probably all too common. This case highlights why E-Verify is not as simple as meets the eye.
It’s very easy for employers to enroll in E-Verify without always fully understanding their roles and responsibilities in using the E-Verify system. The MOU, as previously discussed by our guest attorney blogger Tony Weigel, is riddled with many complexities. This is precisely why employers have been opting to partner with experienced legal counsel to ensure their internal policies and procedures mesh with the law.
Furthermore, a well-developed E-Verify software, coupled with legal counsel, can easily have helped an employer like ComForcare avoid a visit from the OSC altogether as a result of (alleged) unlawful conduct. Find out why employers are choosing to upgrade to the Guardian E-Verify System instead of directly accessing the E-Verify System.
Originally published by LawLogix Group Inc Reprinted by permission.
Ann Cun is a U.S. based immigration attorney who has helped companies in the technology, science, business, sports, entertainment and arts fields secure complex work visas for their employees. With more than a decade of experience as a paralegal and attorney, Ms. Cun possesses a stellar record of success. Her legal expertise also includes conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. She is a graduate of UCLA and UC Hastings School of Law and has been invited to speak by the Bar Association of San Francisco and the American Immigration Lawyers Association on U.S. immigration related topics, as well as other international conferences. Ms. Cun is a contributing author and currently serves as Counsel and Principal Editor for LawLogix Group.