Don’t Overdo It! This thing called Over-documentation

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Recently, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”), which enforces the anti-discrimination provisions of the Immigration and Nationality Act (“INA”), issued a technical assistance letter providing guidance on what is called “over-documentation.”

Over-documentation occurs when an employer requests or accepts more documents than required for the proper completion of Section 2 of the I-9 form.  For example, an employer might record a U.S. Passport, which is List A document, and also a social security card, which is a List C document.  Because an employer need only record either a List A or a List B and List C document, such action would constitute “over-documentation.”

It’s a common thing by employers. I see it all the time.  Here’s what the OSC said about this practice:

  • “An employer may violate the anti-discrimination provision of the INA if it requests more or different documents or rejects reasonably genuine-looking documents on the basis of citizenship or immigration status or on the basis of national origin during the I-9 process.”
  • “If an employer requests more than one List A or a combination of one List B document and one List C document, a violation of the anti-discrimination provision of the INA will depend upon whether the employer made any of those requests because of an employee’s citizenship or immigration status or because of an employee’s national origin.

Based on my experience, most employers that have over-documented their I-9s have not “requested” more documents than required, but instead, have simply just recorded everything the employee gave them. So, that raises the question of what should an employer do if an employee hands them numerous acceptable documents for the I-9 completion.

Here’s my suggestion:  Either tell the employee exactly what you need (i.e., a List A or a List B and List C document), and let the employee then choose what to provide, or just grab the document(s) that you need and not record the rest.

Just remember with I-9 completion, more is not better.

You Can’t Do Indirectly What You Can’t Do Directly

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The news about Grand American Hotel paying $1.95 million to settle ICE fines because some of its managers created employment agencies to rehire unauthorized workers is a reminder to employers that you can’t do indirectly what you cant do directly.  Apparently, a previous ICE audit resulted in the termination of numerous unauthorized workers from the hotel, but some hotel managers thought they could beat the system by hiring these same workers through some type of leasing agency.  It didn’t work.

The issue isn’t uncommon.  During an ICE audit, an employer may receive a notice stating certain employees are not authorized to work.  Sometimes the employer may have a properly completed I-9, but the employee has provided fraudulent or suspect documents.  These employees may be terminated as a result.   When an employer loses a large percentage of its workforce, it often looks for ways to keep the business running as it had before.

Ive been asked, Can we have these terminated employees go work for a temp agency and come back to work for us?  The answer is, Absolutely not!  The employer already has actual knowledge that these individuals are unauthorized.

The Grand America Hotel news also is a reminder to employers that the immigration-related compliance of its contingent workforce (e.g., independent contractors) in general is important.  Employers should no longer feel any comfort with the fact that the contingent workers are not technically W-2 employees, especially if there are indications (e.g., constructive knowledge) that such individuals are unauthorized.

What should employers do?

  • Have concrete contractual provisions with its independent contractors and leasing agencies relating to immigration compliance; and
  • Consider auditing its contractors to ensure they are doing what they are legally required to do to ensure their employees are authorized to work.

 

What the Alabama Department of Labor is Saying about Social Security Discrepancy Letters

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In our previous blog, we speculated about whether the recent letters Alabama employers have been receiving from the Alabama Departement of Labor regarding alleged incorrect/invalid social security numbers was an attempt to enforce the Alabama Immigration Act.  I decided to call the Alabama Department of Labor and inquire about the letter.  Heres how it went:

I called Vivian Cooper who issued a letter to one of our clients.  She was on the phone and the individual who answered the phone asked if someone else could help.  I explained the subject of my call and she routed me to “Tony”.  Here is what Tony said.

  •  When asked how the names/numbers were compiled, he said that they were pulled from kickbacks from their software system, and not the result of any interaction with the Social Security Administartion or other federal agency.
  • Tony said that most of the discrepancies with social security numbers have been due to name changes.
  • When I mentioned to him that we were seeing a lot of foreign nationals and Latinos/Hispanics on the lists, he said that citizenship status had nothing to do with the lists.  I then asked whether Hispanic double last names could be causing the issue, and he said that is very possible.
  • In terms of what to provide in response, he said either a copy of the social security card or the E-verify confirmation – there was no indication that both had to be provided.  I mentioned that E-verify confirmation would only exist if the employer was an E-verify participate at the time of hire, but he did not seem to be very familiar with E-verify rules.
  • When I asked what would be done if the social security card or number turns out NOT to be legitimate, he said that they had not figured out what to do about that yet.  He said that some employers have turned in tenative non-confirmations from E-verify and they are wondering what to do with them.
  • I then just asked him if this process has anything to do with the Alabama Immigration Act, and he said no.  He said this was not about work authorization.  Rather, it was just about cleaning up their records.
  • I asked him if they have been receiving a lot questions, and he said they have received some but most employers were just responding with what they have.

So, it remains to be seen what the Alabama Department of Labor will do with the information it receives from employers and whether there will be an follow-up in the event an employer provides a copy of a social security card that the Department determines to be invalid.  Well stay tuned.

 

Are We Seeing Enforcement of Alabamas Immigration Law? Maybe So

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Some Alabama employers recently received an interesting letter from the Alabama Department of Labor that goes something like this:

An audit of your wage report for the quarter shows incorrect/invalid social security numbers were reported.  Please review the attached printout and provide the correct social security numbers of each employee.  Listed below are the acceptable documentations to be submitted:

Copy of valid social security card

Proof of validation through U.S. Citizenship and Immigration Services E-Verify website

Failure to respond WITHIN 30 DAYS may result in taxes and/or penalties.

A letter pointing out a discrepancy with a social security number is not that surprising, but the Alabama Department of Labors request for E-verify confirmations is a little bit of a shock and leads to some questions, such as:

  • Is the Alabama Department of Labor trying to enforce the Alabama Immigration Law by confirming that employers are using E-verify?  (Im not sure the Alabama Department of Labor has the authority to ask for E-verify confirmations on the same basis as the federal government agencies such as ICE).
  • Is this letter about ensuring employees are work authorized?
  • What will be done with the information provided to the Alabama Department of Labor?

While the answers to these questions are unclear, employers who receive these letters should proceed cautiously in contacting the applicable employees and asking for documentation to confirm their social security numbers.  There are implications both in terms of avoiding discrimination claims investigated by the Office of Special Counsel and in terms of avoiding worksite enforcement fines by ICE.

These letters suggest that the Alabama Department of Labor actually may be kickstarting enforcement of state law, HB56, that requires that employees be work authorized.  Remember that HB56 Section 15 violations includes business license suspension for 10 days for the first offense.  That could be painful.

Lessons Learned for Employer Following ICE Notice of Intent to Fine

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Recently, we assisted a new client who had received a Notice of Intent to Fine from ICE following an I-9 inspection.  It was a sad situation.  This client had a slim profit margin and the amount of the fine was potentially devastating to the business.  It’s rare that we have a client cry in an initial meeting regarding I-9s like this one did.  (We certainly have had many who have wanted to cry or had reason to)

Fortunately, after we reviewed what the client had submitted to ICE through the inspection process, we were able to make some arguments and negotiate to reduce the fines by almost 50% and obtain a reasonable payment plan.

From this experience, here are some lessons this employer learned the hard way
  • It is impossible to correct I-9 deficiencies after ICE comes knocking.  Once ICE serves its Notice of Inspection, you only have three business days to respond.  Besides not having time to make corrections in that short time period. ICE may not view such corrections as valid because they happened after the Notice of Inspection occurred.  So, get your I-9s completed and corrected before you are audited.
  • Calling an attorney after you are issued a Notice of Intent to Fine is like calling a plumber after your house is flooded.  The plumber may be able to fix the problem going forward, but most of the damage is already done.
  • Some fines can be avoided if you know the rules relating to technical and substantive violations. How to properly correct I-9s. The benefits of presenting copies of the documents associated with the I-9s, and the significance of no-match letters.  If you are going to rely on the ICE auditor to teach you, just forget it, which brings me to the last lesson….
  • The ICE auditor is not your friend.  She may say that education and compliance is the main goal, but you will be fined if a fine is possible.  She may even say that you should not worry about being fined during the process, and then fine you anyway.

Our client still benefitted by obtaining counsel after receiving the Notice of Intent to Fine.  We could have done so much more, though, had we been involved prior to and during ICE’s inspection.

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