In a real-world example of how a misunderstanding of how to conduct employment eligibility verification, the Department of Justice recently published a settlement agreement that demonstrates how a nuanced requirement for human resource professionals can be quite costly to the organization at large. Recently, the Immigrant and Employee Rights Section (IER) of the Civil Rights Division of the Department of Justice settled with the California-based manufacturing company, Rehrig Pacific Company, following an investigation stemming from a complaint filed in December 2020.
The allegation was that the company discriminated against its employee, a green card holder, when it requested that the employee present alternative proof of work authorization issued by the Department of Homeland Security from what the employee had provided. When it comes to verifying employment authorization, an employer cannot limit or specify the type of documentation a worker is allowed to use to demonstrate work authorization based on the worker’s citizenship, immigration status, or national origin. In fact, the instructions to the Form I-9 provide the worker options for what evidence can be presented and it is up to him or her to select the documents he or she will present to their employer.
A settlement with a two-year effective period was reached in which the company will be required to pay a civil penalty of $1,542 as well as compliance with the following: The company will need to review their employment policies, revise or develop new policies in accordance with the settlement agreement, and provide them to the IER for review and approval as well as post IER’s “If You Have The Right to Work” posters (in Spanish and in English) in areas where job postings are placed. The headier portions of the settlement that will undoubtedly cost the company both money and time are the requirements for trainings, assessments, and the reporting.
Existing and new HR personnel, beginning first with compliance and payroll employees and then rolling out to the department as a whole, will be required to go through a training that is approved by the IER and will thereafter be assessed. Attendance (including name, job title, job location, and signature) will be recorded and provided to the IER every 30 days. Results of the assessments will also be recorded and provided to the IER every 30 days and in instances where an employee incorrectly answers a question, the employee will be required to review the relevant resources again and answer the question again within 5 days until the questions are answered correctly. The organization will also be monitored by the IER. Beginning November 15, 2021, the organization is required to provide the IER with an audit report every four months, from which the IER will review the Forms I-9 of select individuals. The settlement agreement makes a specific note that this audit will not obviate the government’s right to inspect Forms I-9 within 3 business days, drawing the conclusion that the company should be prepared for an audit at a moment’s notice, not just every 4 months.
The settlement serves as a reminder of how careful companies and their representatives have to be when completing employment eligibility verification and how proper training and guidance from immigration representatives can avoid costly consequences. While the civil fine may be a nominal figure, compliance with the remaining requirements will cost the organization both time and money. Hammond Neal Moore recommends annual trainings to refresh HR personnel as to the “do’s and don’ts” of employment eligibility verification and works with companies in confirming compliance not only on a federal level, but also on a state level.
-Julieta A. Grinffiel
For more information on the above post, Julieta can be reached via email at email@example.com