The Justice Department today reached a settlement agreement with Kinro Manufacturing Inc. in Indiana, resolving allegations of discrimination against work-authorized non-citizens in the employment eligibility verification process. The company is a manufacturer of components for recreational vehicles and manufactured homes.
Under the terms of the settlement agreement, Kinro Manufacturing will pay a $25,000 civil penalty and $10,000 in back pay to the injured party. They will also alter their practices, train human resources personnel, and provide periodic reports to the department for one year.
According to the department’s findings, the company subjected newly hired non-U.S. citizens to excessive demands for documents in order to verify their employment eligibility, but did not require U.S. citizens to show the same documentation. The charging party, a lawful permanent resident, filed his charge of discrimination after he was required to provide additional proof of his employment eligibility not required by law before he could begin work at the company. The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from placing additional documentary burdens on workauthorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin.
If you have questions about the employment eligibility verification process please contact our office at info at harms-law.com.
The DOJ press release can be found at: http://www.justice.gov/opa/pr/2011/August/11-ag-1098.html
Navigating the I-9 process can be difficult and mistakes or violations can be costly. The Justice Department today reached a settlement agreement with Farmland Foods Inc., a major producer of pork products in Kansas City, MO, resolving allegations of document abuse and discrimination in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA). Farmland has agreed to pay $290,400 in civil penalties, the highest civil penalty paid through settlement since enactment of the INA’s anti-discrimination provision in 1986. The DOJ stated that Farmland engaged in discrimination by imposing unnecessary and excessive documentary requirements on non-U.S. citizens and foreign-born U.S. citizens during the I-9 employment eligibility verification process. The investigation revealed that Farmland required all newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth, Ill., plant to present specific and, in many cases, extra work-authorization documents beyond those required by federal law. In the case of non-U.S. citizens, Farmland required the presentation of additional work authorization documents, generally by requiring social security cards, even when employees had already produced other documents establishing work authority. In the case of foreign-born naturalized U.S. citizens, Farmland required evidence of citizenship, such as certificates of naturalization or U.S. passports, even when those individuals had other means of proving their work authority. Farmland’s demand for specific or excessive documents to establish work authority.
Our attorneys conduct I-9 trainings for employers and human resources personnel. If you are interested in a training or have questions about the I-9 form please contact our office at info at harms-law.com.
The National Conference of State Legistlatures created a FAQ on the E-Verify program. Here is the link to the FAQ: http://www.ncsl.org/default.aspx?TabId=13127
The E-Verify program was created as a voluntary Internet-based pilot program to help employers verify the work authorization of new hires. This program remains voluntary in California but 18 states have an E-Verify requirement. In 2011 alone, ten states enacted legislation requiring the use of E-Verify – Alabama, Florida (executive order), Georgia, Indiana, Louisiana, North Carolina, South Carolina, Tennessee, Utah and Virginia. Eighteen states now have an E-Verify requirement.
The program applies to U.S. citizens and noncitizens. The program is administered by the U.S. Department of Homeland Security in partnership with the Social Security Administration.
While the administration of George W. Bush focused on headline-making raids that resulted in arrests of immigrant workers, the Obama administration has gone after employers with ICE’s I-9 audits on the theory that employers who hire unauthorized workers create the demand that drives most illegal immigration. Nationally, from fiscal year 2009 to date, ICE has initiated Form I-9 inspections against nearly 4,000 businesses resulting in fines of nearly $7 million. Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual’s identity and employment eligibility document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual. Additionally, an employer must ensure that the employee provides certain information regarding his or her eligibility to work on the Form I-9. The New York Times ran a story on July 14, 2011 that discussed the effect that an I-9 audit can have on a business. The article focuses on the case of a California employer, David Cox, whose I-9 audit revealed that 26 of his 99 employees were not authorized to work in the United States. Because ICE determined he had acted reasonably in hiring them, Mr. Cox was not fined or held criminally liable. But after confirming that the 26 employees could not produce authentic documents, he was forced to fire them. The article discusses the economic effect that this had on his business.
Here is the link to the full article:
http://www.nytimes.com/2011/07/14/business/smallbusiness/how-a-small-business-can-survive-an-immigration-audit.html?_r=1&sq=immigration&st=cse&scp=3&pagewanted=all
The Justice Department settled allegations of immigration-related employment discrimination against the American Academy of Pediatrics and the Canvas Corporation. These cases are examples that employers cannot go overboard in ensuring that they have a legal workforce or they will run afoul of discrimination laws.
The Immigration and Nationality Act includes a provision designed to protect work-authorized immigrants. When Congress enacted this provision as part of the Immigration Reform and Control Act of 1986, it sought to strike a balance between immigration worksite enforcement and the civil rights of workers. While employers are banned from hiring unauthorized workers, they must also treat all work-authorized individuals the same regardless of citizenship status or national origin.
The Justice Department reached a settlement agreement with the American Academy of Pediatrics (AAP), an organization of 60,000 pediatricians based in Elk Grove Village, Ill., resolving allegations that the organization impermissibly allowed postings on its www.PedJobs.org website that limited applications to U.S. citizens and certain visa holders. AAP has agreed to pay $22,000 in civil penalties, monitor its job postings to ensure that work authorized individuals are treated equally, train its PedJobs personnel about its non-discrimination responsibilities under the INA, and provide periodic reports to the department for three years.
The Justice Department also reached a settlement agreement with Canvas Corporation, a vending company based in Woodbury, N.Y., to settle allegations that Canvas Corporation engaged in a pattern or practice of citizenship status discrimination by preferring to hire only U.S. citizens. The case originated when a lawful permanent resident responded to a Canvas Corporation job advertisement seeking U.S. citizen applicants for vendor positions. According to the department’s findings, Canvas Corporation rejected the resident because she is not a U.S. citizen. Under the terms of the settlement agreement, Canvas Corporation has agreed to pay $10,397 in back pay to the charging party, and $13,400 in civil penalties. Canvas Corporation has also agreed to receive training on the INA’s anti-discrimination provision and to maintain and submit designated employment records to the United States for the two-year term of the agreement.
UC Berkeley’s newspaper, The Daily Californian, reported that the Berkeley-based Pacific Steel Casting Company will be subject to an audit to verify the employment eligibility of its workers by the U.S. Immigration and Customs Enforcement, the investigative arm of the Department of Homeland Security. The audit seeks to verify the employment eligibility of employees through the evaluation of Employment Eligibility Verification Form I-9s that employees submit. The company is the fourth-largest existing steel foundry in the nation, employing a diverse group of workers belonging to approximately 30 different nationalities, according to the company’s website. ICE penalizes employers for knowingly hiring or employing unauthorized workers. ICE has shifted its enforcement focus to employers so it is important that the HR staff is compliant with the current requirements and procedures.
USCIS has updated its handbook for employers regarding the I-9. The updated handbook with helpful information can be found at: http://www.uscis.gov/files/form/m-274.pdf
USCIS has also posted a new I-9 Q&A at: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=330df7c555b2e210VgnVCM100000082ca60aRCRD&vgnextchannel=330df7c555b2e210VgnVCM100000082ca60aRCRD
If you have questions about the I-9 form or are interested in an I-9 training for your HR staff please contact our office at info at harms-law.com.
Obama administration officials are sharpening their crackdown on the hiring of illegal immigrants by focusing increasingly tough criminal charges on employers while moving away from criminal arrests of the workers themselves. The scope of the administration’s strategy has become clear as long-running investigations of employers have culminated in indictments, convictions, exponentially increased fines and jail sentences. While conducting fewer headline-making factory raids, the immigration authorities have greatly expanded the number of businesses facing scrutiny and the cases where employers face severe sanctions. Last year, according to government figures, the enforcement agency started 2,746 workplace investigations in addition to audits, more than double the number in 2008, the last full year of the Bush administration. Fines totaling about $43 million, also a record, were levied on companies in immigration cases. Department of Homeland Security officials, speaking anonymously in order to discuss internal policy, said immigration officers were no longer authorized to carry out workplace raids unless they cooperated with federal prosecutors to prepare criminal cases against the employers. Last year, 119 employers were convicted.
To read more: http://www.nytimes.com/2011/05/30/us/politics/30raid.html?pagewanted=1&sq=immigration&st=cse&scp=2
Last week, on Septmber 15th, I presented to the Alameda County chapter of the California Employers Advisory Council on Worksite Enforcement issues. The audience asked for a copy of this presentation, so I have inserted it into this blog post, Alameda EAC Worksite Enforcement. This presentation includes information about e-Verify, I-9s, social security “no-match” letters, as well as recommendations for employers to follow to protect themselves from a possible worksite enforcement action.
I would also direct participants to visit the Worksite Enforcement Tab on this website under “Information” for further resources.
On June 1, 2010, the USCIS published its notes from a session it held to gather feedback and input from stakeholders on E-Verify and the Form I-9 program.
There were a few notable points released in this memo:
1) A self-check initiative will be introduced in December. This initiative will enable anyone to go to the website and run a verification query on him/himself and determine the accuracy of his/her government record. Hopefully, this will allow those individuals who have recently changed their name or their immigration status to verify that the system is correct and solve problems before they are given an abbreviated window by the e-verify system to do so.
2) The Verification Division informed stakeholders that it runs monthly reports to see if companies are running checks outside 3 business days of an employee’s hire date. This statement confirms our suspicion that the USCIS is using the e-Verify tool to police Form I-9 completion. This monitoring could expand into other areas and also prompt further audits and investigations.
For further information about worksite enforcement activities, please visit our worksite enforcement portal under the “information” tab.
The Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security is charged with investigating entities that unlawfully employ workers without authorization. In 2009, this agency began focusing its reources on auditing and investigating employers and pursuing criminal penalties. In fiscal year 2009, ICE worksite investigations resulted in a total of 410 criminal arrests, including 114 management personnel.
On April 21, ICE announced that a San Diego bakery, its owner and manager were indicted on federal charges for hiring undocumented workers. This case highlights the agency’s reliance on social security “no match letters” as evidence that workers are not authorized to work in the US. The bakery allegedly paid the workers in cash after receiving the no match letters until the workers produced a new set of employment documents with different social security numbers. This indictment should serve as a warning to all employers that ICE does pursue criminal charges against managers and owners of establishments in worksite enforcement investigations.
Please refer to the Worksite Enforcement Tab under Information on this website for more information and useful links.
Worksite Enforcement | melissa | 
August 30, 2011 9:52 pm | 
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