An Oregon employer was recently fined by the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) for prohibited discrimination when it bungled an E-Verify Tentative Non-Confirmation (TNC).
Instead of providing notice to a new employee of the TNC generated by its E-Verify check of the information provided on her I-9, ComForcare In-Home Care & Senior Services asked her to provide an alien card based on their perception that she was a lawful permanent resident, although she had already provided adequate I-9 documents. She declined, stating that she was a naturalized citizen. Then, ComForcare asked her to bring in her naturalization papers and would not permit her to start work. She contacted OSC.
Once the employer receives a TNC in response to an E-Verify query, it must provide notice to the employee and allow her to contest the E-Verify finding. The employee is directed by the E-Verify TNC notice to contact the government agency that issued the TNC, either the Social Security Administration or the Department of Homeland Security. The agency in question resolves the TNC and generates either a “work-authorized” notice or a Final Non-Confirmation (“FNC”) in E-Verify. While the employee’s contest is pending, the employee must be permitted to start work on the same terms as an employee found by E-Verify to be work-authorized.
Under I-9 procedures, the employer is never permitted to direct what documents the employee must provide to show work authorization. The OSC investigation established that this employer routinely asked non-U.S. citizens or persons it perceived to be non-U.S. citizens to produce specific employment eligibility documents to establish employment eligibility. The OSC is committed to enforcing the laws that prohibit employment discrimination based on citizenship or national origin. The OSC also enforces prohibitions against document abuse which includes requiring any employee to produce specific employment authorization documents.
In this case, the fine was only $525 in back pay and $1,210 in civil penalties, and was limited to the case of one employee. ComForcare also agreed to train its Human Resources staff about avoiding discrimination in the employment eligibility verification process and is subject to reporting and compliance monitoring to OSC for 18 months. In similar circumstances, some employers have fared much worse. The full text of the press release is available here.
“OSC takes an active role in enforcing the anti-discrimination provisions of the I-9 laws, especially when it finds employers requiring specific employment authorizing documents from lawful permanent residents or naturalized citizens,” says Chris Bauer, Manager of Immigration Services at MSEC. If you have questions about this or about E-Verify, please contact this service at 303-223-5431 or 303-223-5430.