The Department of Justice (DOJ) announced another recent settlement with an employer for document abuse during the I-9  process. A former employee of Garland Sales, Inc., filed a complaint with the DOJ  Office of Special Counsel for Immigration Related Discrimination after he was terminated from employment for refusing to provide his employer with the specific documentation it requested for completion of his I-9 form.

The complainant was a naturalized U.S. citizen of Hispanic origin. For completion of his  I-9, he provided an unexpired driver’s license (List B) and an unrestricted social security card (list C). Garland accepted these, but also requested that he provide his green card, to prove that he was legal to work in the United States. When the worker objected, Garland terminated his employment.

The documentation the employee presented were absolutely sufficient for I-9 purposes, therefore Garland committed document abuse when it requested more and different documents than what was required for the I-9 form. The employee was well within his rights to refuse to provide the additional document, and in fact would not have even had a green card in his possession because he had already become a US Citizen.

In an effort to make sure that they are doing everything possible not to hire an undocumented worker, employers sometimes go beyond what is allowable during the I-9 process. Unfortunately this has negative consequences as well, as shown by the settlement Garland reached with DOJ, which included a civil money penalty, back wages and retraining of all workers involved in the I-9 process. 

In addition, it is much more likely now that Garland will be subject to an I-9 audit by ICE and repeated reviews of its I-9 and hiring practices by the DOJ.  The best way to avoid these long term consequences is to ensure that hiring, I-9 and E-Verify processes are fair and non-discriminatory in nature. As the DOJ campaign says “Look at the Facts, Not the Faces.”

For more on acceptable I-9 procedures, review the DOJ's Guide to Fair Employment.

On January 1, 2012 several new E-Verify laws became effective: Now many employers in Louisiana, Alabama,  Gerogia, Lousiana, South Carolina and Tennessee, must use E-Verify.

• Alabama:   The new requirement goes into effect for state contractors on January 1, 2012 and for all employers and business entities on April 1, 2012
• Georgia:  The new E-Verify requirement mandates that employers with 500 or more workers use E-Verify for their employees starting on January 1, 2012.  As of July 1, 2012, businesses of 100 or more employees will have to start using E-Verify as well, and as of January of 2013, all businesses  with  10 or more employees will have to use the system.  Businesses of fewer than ten employees are exempt from the E-Verify requirement.
• Louisiana:  The new requirement applies to private employers who will bid on public entity projects or enter into such contracts on or after January 1, 2012.  Under the new law, private employers who bid on or enter into a public entity contract for physical performance of services must confirm in a sworn affidavit that the employer is using E-Verify to validate the legal citizen or legal alien status for all employees in the United States.  If the employer in question is awarded the contract, he must conduct  E-Verify queries for all new hires in Louisiana who will be used for the duration of the contract..  This requirement applies to general and sub-contractors.
• South Carolina: The South Carolina Illegal Immigration and Reform Act requires  all employers to enroll in E-Verify effective January 1. 2012, and to verify the legal status of all new hires via E-Verify within three business days. 
• Tennessee:   The Tennessee Lawful Employment Act of 2011 mandates that all state and local government agencies, as well as all private employers with 500 or more employees, must enroll and participate in E-Verify or request and maintain an identity/employment authorization document from all new hires starting on January 1, 2012.   The implementation date of a mandatory E-Verify requirement  for private employers with 200 to 499 employees is July 1, 2012, and for employers with 6 to 199 employees the requirement starts on  July 1, 2013.

For more information on this or any other E-Verify topic, please contact Valentine Brown at 215 979-1840 or by email vbrown@duanemorris.com