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No Summer Vacation for the Office of Special Counsel
Posted 08.19.13
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Valentine A. Brown
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The Office of Special Counsel for Immigration Related Discrimination (OSC) has been very busy in the last few weeks. While many employers and their employees have been enjoying traditional August vacations, the OSC has been conducting investigations, bringing suit and issuing advisory opinions on discrimination and compliance in the I-9 process. A rundown of their latest actions is below:

Requiring Green Cards for I-9 Completion

Forever 21, a popular clothing retailer, has been fined for the illegal practice of requiring a foreign national to provide a green card during the I-9 process. Forever 21 made the mistake of refusing to accept an Employment Authorization Document (EAD) and telling the employee to present a green card for completion of the I-9. The individual, who was employment-authorized as an applicant for permanent residence, was forbidden to work following the rejection of her EAD. Pursuant to the settlement agreement, Forever 21 will pay $1,705.50 in back pay to the charging party, pay $280 in civil penalties to the U.S., and receive training on the anti-discrimination provision. To read more, click here.  This situation is an example of document abuse, when an employer refuses to accept legal documents and/or requests more or different documents than what the employee presents.  This situation can be easily avoided by the training of employees who are responsible for the I-9 process.

Requiring an EAD for I-9 Completion

SOS Employment Group made the mistake of rejecting an un-restricted social security card and valid driver’s license of a foreign national with refugee status. The company committed document abuse when it rejected these documents and asked the employee to present an EAD at both initial hire and when subsequently re-verifying the refugee’s employment authorization. Pursuant to the settlement agreement, SOS Employment Group will pay back pay in the amount of $9,157.50 to the charging party and $1,200 in civil penalties to the U.S. and receive training on the anti-discrimination provision. To read more, click here.

Re-Verification of I-9 Documents by General Contractor Discouraged

The OSC has issued a Technical Assistance Letter in response to a question from an employer as whether it is permissible for a general contractor to re-verify I-9  documents presented by the employees of a subcontractor at any time during the contractor-sub-contractor relationship.  The answer according to the OSC is No, as this practice may constitute document abuse and citizenships status discrimination.

The OSC explains that this practice is problematic due to the  passage of time and the fact that the employee many no longer have the documents originally presented: The document(s) has expired and the employee now has a newer version of the originally presented document The employee has a different document due to adjustment of immigration status (i.e., from a lawful permanent resident to a U.S. citizen) and has forfeited his or her originally presented document; or The document has been lost, stolen or misplaced.

The OSC also explains that  “To the extent such individuals are barred from employment, they may perceive that the general contractor and/or subcontractor has discriminated against them based on their citizenship or immigration status. Because the proposed practice relates to the original 1-9 verification process, such employees might also allege discriminatory I-9 practices in violation of the anti -discrimination provision.”

Sharing I-9s with Payroll Companies Prohibited

In another Technical Assistance Letter, the OSC addresses an employer’s question as to whether when changing payroll companies it would be permissible to provide the new company with all I-9 forms for the purpose of data sharing. The OSC, relying on I-9 privacy requirements, answers in the negative.

8 C.F.R. § 274a.2(b)(4) states the following: (4) Limitation on use of Form 1-9. Any information contained in or appended to the Form 1-9, including copies or electronic images of documents listed in paragraph (c) of this section used to verify an individual’s identity or employment eligibility, may be used only for enforcement of the Act and sections 1001 , 1028, 1546, or 1621 of title 18, United States Code. As a result, the OSC stated, “[i]n our view, sharing Forms 1-9 with a private entity in order to have that entity verify employees’ identities for payroll purposes is not a use related to enforcement of the Act or one of the specified criminal laws, as set forth in the statute and accompanying regulations.” The OSC also reaffirms that the practice of allowing a third party vendor to review I-9 forms  may result in the  third party vendor questioning the sufficiency of documents presented to the employer, which documents the vendor would have not seen in their original form. “To the extent the employer requests additional or different documents from an employee based on the vendor’s scrutiny of Forms 1-9, the request could be perceived by the employee to constitute document abuse in violation of the antidiscrimination provision of the INA.”

Similarly, use of information gathered during the E-Verity process, such as print-outs of E-Verify results is also subject to similar restrictions on its use. Under the E-Verify MOU, an employer must “use the information it receives from SSA or DHS pursuant to E-Verify and this MOU only to confirm the employment eligibility of employees as authorized by this MOU.” Art.H, C.l3. Further, an employer is required to ensure that the information is “not disseminated to any person other than employees of the Employer who are authorized to perform the Employer’s responsibilities under this MOU, except for such dissemination as may be authorized in advance by SSA or DHS for legitimate purposes.” Id. Additionally, the E-Verify MOU states that information which the employer receives from SSA is governed by both the Privacy Act and the Social Security Act, and that misuse of the information may result in criminal penalties. Id.; Art. II, C14. There may be other relevant federal, state, or local laws, regulations or executive orders regarding the dissemination of personally identifiable information (PH) similar to that contained in the E-Verify print out and Form 1-9 by which your client must abide.

New Information Sharing Agreement between OSC and NLRB

The OSC and the National Labor Relations Board executed a Memorandum of Understanding allowing the NLRB to make referrals to OSC, with the express authority of the NLRB charging party, when a matter before the NLRB suggests a possible violation of the anti-discrimination provision, such as verification of employment authorization, in the I-9 or E-Verify process, that appears to be discriminatory based on citizenship status or national origin.

Similarly, OSC will refer matters to the NLRB that appear to fall within that agency’s authority, such as infringement on the right to form, join, decertify or assist a labor organization, and to bargain collectively through representatives of their own choosing or to refrain from such activities.  The MOU also provides for cross-training and technical assistance to ensure that staff within each agency can identify appropriate referrals.  OSC has more than 50 partnership agreements with federal, state and local agencies, including U.S. Citizenship and Immigration Services and the Equal Employment Opportunity Commission.  For More information click here.

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About Valentine A. Brown
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Valentine A. Brown is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group. She serves as global immigration law counsel to a diverse group of multi-national and domestic corporations and their employees, providing advice, compliance audits and representation to help navigate the intricacies of US and foreign immigration laws. Ms. Brown also represents individuals in all types of immigration proceedings, including persons of extraordinary ability; spouses, fiancées and children of US citizens; naturalization and political asylum applicants; as well as respondents in deportation and immigration appellate proceedings.