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Record-Breaking Bias Fine Hints At Power Of E-Verify Info

29 May

The U.S. Department of Justice‘s Office of Special Counsel recently nabbed the department’s largest civil penalty ever for an Immigration and Nationality Act bias claim, a move attorneys say may have been bolstered by access to E-Verify statistics that has led to more enforcement from the unit.

The DOJ announced Wednesday that California farm labor contractor Luis Esparza Services Inc. agreed to pay $320,000 to resolve claims that it required green card holders to present specific documents during the work eligibility process because of their citizenship status.

The fine is the biggest civil penalty the DOJ has ever nabbed for a discrimination claim under the INA, and was secured by the department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices after a two-year investigation.

Although the OSC has been around for nearly three decades, attorneys say the office has been ramping up its activity in recent years, possibly thanks to a 2010 agreement requiring U.S. Citizenship and Immigration Services to refer discrimination matters to the OSC along with relevant information from the E-Verify employment eligibility system.

“With the memorandum of understanding with USCIS about the E-Verify data, they’re getting a significantly greater amount of information about potential violations,” said David Jones of Jackson Lewis PC. “So there’s more information for them to act on.”

David Grunblatt of Proskauer Rose LLP agreed that the OSC is likely benefiting from increased coordination between agencies, and pointed out that the unit will often confer with USCIS and Immigration and Customs Enforcement on potential investigation targets.

The OSC may also simply be maturing and figuring out how to balance its anti-discrimination public service efforts with more robust enforcement, he said.

“They’ve been gradually been getting more confident in their mission,” Grunblatt said. “And I think they’ve been taking on bigger and bigger targets than they have before.”

The tricky part, however, is that the statistics given to the OSC may sometimes suggest discrimination where none exists, Jones said. For instance, although employers are barred from telling workers to provide their green cards, employees are allowed to present such cards as proof of work authorization, and according to Jones, many people do. As a result, a pattern may look like document discrimination even if it’s not.

“When someone just sees that as a pure data analysis, it looks like the employers are discriminating, and then OSC goes and investigates,” Jones said. “And obviously, sometimes they are — sometimes it’s intentional. Sometimes it’s unintentional.”

The best bet for avoiding an investigation or fine if the OSC does come knocking is to show that the employer was acting in good faith, has a formal policy for complying with work authorization rules and didn’t negatively affect any potential employees with their practices, attorneys say.

Regularly training employers and their HR departments on how not to run afoul of the INA’s anti-discrimination section is also key, as many companies don’t know that they’re prohibited from asking for specific documents based on someone’s citizenship status.

“A lot of times people aren’t trying to be a bad actor,” said Kate Kalmykov of Greenberg Traurig LLP. “They’re doing things because either they’re overzealous and they think they’re being overly compliant, or they simply don’t know and haven’t received proper training.”

Charles Foster of Texas-based Foster LLP added that frequent turnover at companies means that compliance trainings should be done at least every two years, so that employees are kept up to date on what constitutes legitimate hiring practices.

“They may have that training somewhere in a file, but it’s not really … in the forefront of their thought process,” Foster said. “So I think, certainly, a minimum once every couple of years.”

Notably, employers’ tendency to ask for too many or too specific kinds of work authorization documents may be a consequence of so much enforcement activity in recent years from ICE, according to attorneys.

The agency audits employers’ I-9 forms for compliance, and violations can result in fines, such as the $227,251 penalty recently handed to a temporary staffing company.

“Employers have been hit for the last several years for not being tough enough in their I-9 process,” Jones said. “So I think a lot of employers have swung too far to the other side trying to prevent enforcement fines, and now they’re finding themselves receiving discrimination fines on the other side of that.”

Undoubtedly, ensuring that their employees are eligible to work — while also making sure not to discriminate against noncitizens through improper document requests — can be a confusing and difficult distinction for many employers, according to attorneys.

“Employers really do have to walk the line between competing legal requirements, and that is no easy task for small businesses,” said Lynden Melmed of Berry Appleman & Leiden LLP, who noted that verification requirement compliance is particularly tricky for companies whose states have passed their own hiring process laws.

However, when it comes to the size of fines dished out by the OSC, employers should note that the numbers haven’t risen dramatically in the last few years.

According to Jones, the OSC’s previous record fine, issued in 2011, was $290,400 — only about $30,000 less than the penalty issued Wednesday.

“I don’t necessarily see a huge trend in terms of fines going up,” Jones said. “Most of the fines we’re still seeing are in the tens of thousands.”

Still, attorneys say it’s likely that the level of probes and enforcement actions may continue to increase, especially given the intense level of focus on immigration at the national level right now.

“I think … this type of stuff is going to grow,” Kalmykov said. “And it’s very important for that reason that employers really examine their hiring practices to make sure that they’re complying with all of their requirements.”

–Additional reporting by Aaron Vehling. Editing by Katherine Rautenberg and Brian Baresch.