Legal Updates on Immigration and Social Networking in the Hiring Process

Transcription

1 Legal Updates on Immigration and Social Networking in the Hiring Process Friday, John Fay Vice President of Products and Services & General Counsel LawLogix Group, Inc.

2 I-9 Compliance: Rock meet hard place 2

3 Today s Agenda Immigration Enforcement on Employers: Arizona and Beyond Tricky I-9 and E-Verify Situations for Colleges and Universities Anti-discrimination in the I-9 Process Social Media in the Hiring Process 3

4 US Supreme Court Upholds Arizona E-Verify Law LAWA imposes sanctions on employers that knowingly or intentionally hire unauthorized workers, as well as requires employers to use E-Verify Court held that LAWA is not expressly or impliedly preempted by federal law Arizona s mandate does not conflict with the federal scheme Implications: greater enforcement and copycat laws in other states 4

5 Worksite Enforcement On The Rise Shift from workplace raids to I-9 audits Increase costs on employers who hire illegal workers Seek criminal penalties against employers and managers Issue civil fines as a penalty when the evidence does not support a criminal prosecution 5

6 New I-9 Audit Initiative The Obama Administration s enforcement strategy increases the chance an employer may face an I-9 audit and fines for paperwork violations. Since April last year, ICE has investigated over 2,740 employers nationwide (400%+ increase from previous year). Employers were fined $43 million last fiscal year for immigration violations 6

7 Basic I-9 Requirements Employers must verify the identity and employment eligibility on Form I-9 for every employee hired after November 6, May not knowingly hire or continue to employ a person who is not authorized to work in the U.S. Knowingly = actual knowledge or constructive knowledge (what the employer should have known) Must retain Form I-9s for 3 years after the employee s start date or 1 year after termination, whichever is later Upon request, must provide Forms I-9 to DHS, OSC, or DOL for inspection within 72 hours 7

8 I-9 Completion Employee must complete Section 1 on or before the first day of employment (first day of paid work). Employer must complete Section 2 within three business days after first day of employment. Employee must present original documents. Employer must reverify employment authorization of certain foreign national employees in Section 3. 8

9 Most Common Errors in Section 1 1. Name in wrong order 2. Address incomplete 3. SSN incorrect 4. Attestation not checked or incomplete 5. Signature missing 6. Date missing or date of birth instead of current date 9

10 Most Common Errors on Section 2 * Columns A, B, or C left blank with copies attached 7. Document expiration date missing 8. Document # missing 9. Issuing Authority missing 10. Over-documentation 11. Employer signature missing 12. Company name or address missing 13. Date of hire missing 14. Section 2 not signed within 3 days of hire 10

11 Case Study: University Challenges Decentralized I-9 Process: 145 departments and 160 personnel responsible for completing I-9s. Difficult to monitor and prevent I-9 errors Federal Contractor with looming E-Verify deadline 11

12 Case Study: Lessons Learned An I-9 Guru is essential Standardization is your friend Consider utilizing electronic tools to facilitate oversight and reduce errors 12

13 Tricky I-9 Situations Alphabet Soup H-1B Portability F-1 Students J-1 Exchange Visitors How to re-verify expiring work authorization? 13

14 Remote Hires Employee must complete I-9 on first day of paid work and employer must review and sign within 3 days after Consider using another university or notary to act on behalf of employer (banks and many UPS stores also perform I-9 verification) I-9 Software can streamline the process with remote login and access to mobile notary network 14

15 E-Verify on the Rise Over 250,000 employers now enrolled with 1,400 new registrations per week New State Law Provisions in Georgia and Indiana (plus numerous cities and counties across the US) Additional DHS staff hired to conduct E-Verify monitoring for potential abuse 15

16 Employer s E-Verify Process Review extensive documentation including the Memorandum of Understanding (MOU) If enrolling voluntarily, you must decide which locations will use E-Verify Determine if any changes are necessary to your organization s current I-9 process Develop written policies and engage in training 16

17 E-Verify Results Employment Authorized Occurs for 98.3% of employees submitted* Tentative NonConfirmation Occurs for 1.7% of employees submitted* Final Nonconfirmation Occurs for 1.43% of employees submitted * *Statistics based on E-Verify cases in Fiscal Year 2010 (October 2009 through September 2010). 17

18 Managing E-Verify Cases You just received a TNC: Don t Panic! There are many legitimate reasons Promptly notify employee in private If employee contests, make sure you stay on top of the case by checking the status Documentation is key in the event of an audit 18

19 Maintain E-Verify Documentation 19

20 E-Verify and STEM OPT Universities, as employers, must enroll in E-Verify when petitioning on behalf of an F-1 STEM OPT student who seeks a 17-month extension. After enrollment, must use E-Verify for all new hires Provide student with E-Verify ID number for the EAD application 20

21 E-Verify for Federal Contractors Most employers: All new hires, and All existing employees assigned to the contract, or 180 day option for all existing employees University & Institutions of Higher Education: New hires assigned to contract, and Existing employees assigned to contract 21

22 Federal Contractor FAQs We know we re a federal contractor, but where s the clause? We have several related college entities. Can they all enroll? Subcontractor Issues how closely do we have to monitor their use of E-Verify? 22

23 Employer E-Verify Concerns Avoiding government audits and fines Improving the workflow in light of reductions in workforce Minimizing paper and managing reverifications Dealing with E-Verify logistics (especially for federal contractors) 23

24 I-9 Compliance: Rock meet hard place 24

25 Unfair Immigration Employment Practices Employer cannot discriminate against a "protected individual" because of national origin or citizenship in hiring, recruitment, referral, or discharge. Requiring Specific Documents during the I-9 Verification Process constitutes Document Abuse (with only very limited exceptions). Most Common Document Abuse Situations: Employer insists on specific documents in the I-9 verification process. Employer requests verification-related documents before hiring the individual. Greater scrutiny and rejection of valid documents 25

26 Penalties for Immigration-Related Discrimination Back pay and rehire Training and monitoring Retain records of people applying for three years Civil fines ($325 to $3,200 per count) Debarment from participating in federal contracts (Executive Order No (Feb. 16, 1996)) 26

27 The Trouble with Green Cards Many employers mistakenly believe that all permanent residents must produce a green card for I-9 purposes Green cards have expirations, but the underlying work authorization does not expire Mistakes often lead to wrongful terminations or refusals of employment 27

28 I-9 Compliance Action Items Implement/review comprehensive written I-9 and E-Verify policy and compliance program Work with outside counsel to audit existing I-9s Centralize control of I-9 and E-Verify process and engage in frequent training Adopt a trusted electronic I-9 solution to facilitate oversight 28

29 Social Networking and Hiring 45% of employers surveyed use social networking sites to do research on job candidates employers disregarded job candidates because of: 1. inappropriate or provocative photos 2. content about drinking or drugs 3. bad-mouthing a previous employer 18% of employers reported that online content caused them to hire a candidate 29

30 Researching Applicants Balance the need to know information versus negative consequences of learning personal information during the preemployment screening phase Pros: limit surprises later, narrow the playing field Cons: can disclose wide range of extraneous personal information through text and photos 30

31 What can you do with the information you learn? If personal information that should not be considered, must disregard it If information about applicant s character, credibility, job qualifications, you may consider it 31

32 What if you get it wrong? The anatomy of a potential lawsuit Employer checks out applicant on Facebook Applicant is not hired and learns that employer checked them out Applicant files discrimination charge alleging failure to hire because of protected category 32

33 Best Practices If research is done on one applicant for a position, then it should be done on all applicants Direct hiring managers to dismiss any unreliable information, give a job applicant the opportunity to deny or clarify information Ensure that any employment decision is based on a job-related reason Avoid providing references on LinkedIn sites 33

34 Questions? Today s Speaker John Fay Vice President of Products and Services & General Counsel, LawLogix Group, Inc. Visit us on the web LawLogix The I-9 and E-Verify Blog 34