What to Expect from I-9 and E-Verify Compliance in 2018

Transcription

1 What to Expect from I-9 and E-Verify Compliance in 2018 Presenter John Fay VP and General Counsel Hyland Software, LawLogix Division

2 Today s Agenda 1. Emerging I-9 and E-Verify Compliance Issues 2. Actionable Strategies and Suggestions But wait, there s more Audience Polls Useful I-9 Trivia - 2 -

3 Perfect Storm of I-9 Enforcement The Trump Effect Rigorous enforcement of existing immigration laws Travel bans, end of DACA, and termination of TPS Immigration and Enforcement ( ICE ) Pledges Increase time spent on worksite audits by 4 or 5 times Prosecute employers to the fullest extent Hire 10,000 (or more?) new officers to meet White House Directives - 3 -

4 Penalty Calculations Fines are assessed per I-9 form with one or more substantive or uncorrected technical/procedural violation On or before November 2, 2015 $110 to $1,100 per form After November 2, 2015 $220 to $2,191 per form The actual fine is based on percentage of errors (organizations with 50% or more errors will be fined at the highest amount) - 4 -

5 I-9 Audit Strategies Conduct a self-audit of your existing I-9 files and practices o Can be a spot audit or entire population o Correct errors and omissions and document good faith efforts o Complete new I-9s when needed Develop an I-9 Audit Preparedness Plan o Need a plan to handle the service of process o Do not waive the 3-day response period o Be careful of commingled employee files - 5 -

6 In 1996, then Congressman Sonny Bono introduced the Good Faith provision into the law which allows employers up to 10 days to correct technical or procedural I-9 errors - 6 -

7 The Largest Worksite Penalty Asplundh Tree Experts, Co. is a family-owned and operated utility contractor, headquartered near Philadelphia Six-year ICE audit and investigation revealed that the company purposefully decentralized its hiring so that management could remain willfully blind to I-9 compliance problems (including the hiring and rehiring of undocumented workers) ICE assessed $95 million in fines ($80M for criminal forfeiture and $15M in civil monetary penalties) - 7 -

8 Best Practices Process Improvements Systemize the I-9/E-Verify workflow where possible Consistent rules for when Form I-9 is completed Policy for examining documents Oversight to create accountability and rectify mistakes Frequent review of your compliance program and annual training - 8 -

9 The general civil law 5-year statute of limitations applies to Form I-9 violations, but only once the error has been corrected - 9 -

10 E-Verify is watching you The Monitoring and Compliance ( M&C ) unit uses algorithms to detect patterns of potential program misuse based on certain behaviors M&C produces monthly non-compliance reports, communicate with employers principally via , then conducts a 90-day look-back to see if corrective steps have been taken E-Verify may also conduct a desk review or onsite visit & refer cases directly to other government agencies in the event of issues

11 E-Verify Best Practices Centralize the E-Verify function to ensure consistency and accuracy Conduct periodic review of E-Verify cases to look for red flags (consistently late, improper case closure, etc.) Develop written policies on managing E-Verify mismatches, including process overview, rules for remote hires, and dealing with TNCs

12 E-Verify processes all of their submissions according to Central Standard Time (CST)

13 Unfair Documentary Practices DOJ Immigrant and Employee Rights ( IER ) oversees complaints and independent investigations Prohibited Practices Citizen only hiring policy or practices unless required by law Requiring specific documents during the I-9 process Asking certain workers for more documents than needed Rejecting valid documents

14 The Discrimination Trap IER can find discrimination regardless of the explanation for the differential treatment Does not require a showing of animus or hostility Many employers mistakenly believe that all permanent residents must produce a green card for I-9 purposes A pattern or practice violation can cost an employer hundreds of thousands of dollars in fines and training obligations

15 I-9 Discrimination Avoidance Include anti-discrimination training when instructing hiring and HR managers on how to complete the Form I-9 and E-Verify Provide examples of acceptable documents for all of the various possible classes of employees Pay special attention to reverification rules, including when employees should not be re-verified

16 Employers should not reverify conditional lawful permanent residents (i.e., those who present a 2-year green card)

17 E-Verify can be FAR more complicated In July 2017, DHS issued a special notice to federal contractors that they will rigorously promote and validate enrollment in and use of E-Verify by contractors and subcontractors pursuant to the E-Verify FAR rule Organizations with FAR obligations face potential loss of contracts if they do not comply with the requirements

18 E-Verify FAR Requirement Employers with a federal contract or subcontract that contains the FAR clause must use E-Verify as a condition of the contract Prime Contracts o Value above $150,000 o Performance period of 120 days or more o At least some work performed in the US o Does not include commercially available off the shelf items Subcontracts o Value of more than $3,500 Must check the employment eligibility of all new hires as well as current employees, with some limited exceptions

19 Coping with E-Verify FAR Identify qualifying contracts (just because you do work with the federal government doesn t mean this rule applies) Determine the scope of the obligation (new hires, all employees, only employees assigned to the contract?) Develop a plan for submitting to E-Verify (timelines are key; plus gives you the opportunity to fix past mistakes)

20 State Laws California AB 450 Beginning January 1, 2018, California employers required to: Ask federal agents to provide a judicial warrant before allowing agents to access nonpublic areas of worksites Provide current employees (and any collective bargaining representative) with a notice of any inspection of I-9 forms or other employment records within 72 hours of receiving the Notice of Inspection (NOI) Provide an affected employee with a copy of the NOI Employers face penalties of $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation; can also be fined for improper reverification

21 Best Practices State Laws Carefully research and monitor state and local immigration laws which may impact your business operations California employers should work on notice procedures in the event of an audit Be mindful of possible federal law pre-emption issues when in doubt, contact an attorney

22 Thanks for Attending! If you d like to learn more about how LawLogix can help your organization better prepare for 2018 and eliminate challenges in your I-9 & E-Verify operations please visit: -

23 Question and Answer Session Presenter John Fay VP and General Counsel Hyland Software, LawLogix Division