Compliance &Ethics - Society of Corporate Compliance and Ethics

In the current enforcementenvironment, many employershave become concerned that theirI-9 forms may contain errorsand have overcompensated bydeveloping unnecessary (andsometimes illegal) practices toimprove their I-9 compliance.Permanent Resident card, etc.) or a combinationof a List B (driver’s license, voter registrationcard, etc.) and a List C document governmentissuedbirth certificate, Social Security card,etc.). The potential employee must be allowed toprovide any combination of valid documents inorder to satisfy Form I-9 requirements.In the current enforcement environment,many employers have become concerned thattheir I-9 forms may contain errors and have overcompensatedby developing unnecessary (andsometimes illegal) practices to improve their I-9compliance. As a result, some companies haveasked individuals to provide specific documentsfor employment eligibility verification, or if acandidate is not a citizen of the United States,they have asked for more documents than arenecessary to complete a Form I-9.Generations Healthcare, a healthcareprovider based in California, was recentlyinvestigated and is now being prosecutedby the DOJ for mandating that all non-UScitizens, who apply for employment withGenerations’ St. Francis Pavilion facility inDaly City, present extra work authorizationdocumentation, a burden that was not placedon native-born US citizens. 3Other employers, such as Garland SalesInc., a Georgia rug manufacturer, refusedto accept sufficient employment verificationdocuments from persons of foreignorigin, and would request that naturalizedUS citizens provide their permanent residentcard, or “green card.” 4 If the employee refusedGarland’s request, their employment offer wasrescinded. As a result, the Office of SpecialCounsel (OSC) for Immigration Related UnfairEmployment Practices prosecuted the companyand required them to pay $10,000 in backpay and civil penalties.To protect a company from an OSCemployment discrimination investigation, andto also remain vigilant in employment verificationpractices, we recommend that a company’sHR department has a detailed Form I-9 compliancepolicy with a corresponding checklist.Specifically, the policy should instruct yourHR department to provide each potentialemployee with the government approved list ofacceptable Form I-9 documents. This ensuresthat no miscommunication can occur and preventsyour HR department from accidentallyrequesting specific documentation, whichcould be construed as discriminatory.Above all, a company’s Form I-9 policyshould stress consistency. Most OSC investigationstarget companies that treat foreignnationals and naturalized U.S. citizens differentlythan native born U.S. citizens. Bykeeping employment eligibility verificationprocesses consistent for each potentialemployee and keeping a well-trained HR staff,any company should be able to navigate theever choppier enforcement waters surroundingthe Form I-9. ✵1. Jordan, Miriam: “Crackdown Resumes on Firms’ Illegal Hires.” WallStreet Journal, November 15, 20112. U.S. Citizen and Immigration Services: Handbook for Employers:Instructions for Completing Form I-9 Employment EligibilityVerification Form. M-274 (Rev. 06/01/11) N. Available at http://www.uscis.gov/files/form/m-274.pdf3. United States Department of Justice: “Justice DepartmentFiles Lawsuit Against California Healthcare Provider AllegingDiscrimination.” News release, September 30, 2011. Available at http://www.justice.gov/opa/pr/2011/September/11-crt-1301.html4. -United States Department of Justice. “Justice Department SettlesAllegations of Citizenship Status Discrimination and RetaliationAgainst Georgia Rug Manufacturer.” News release, December30, 2011. Available at http://www.justice.gov/opa/pr/2011/December/11-crt-1718.htmlJustin Estep is an Attorney with FosterQuan, LLP in Austin, Texas. He maybe reached at jestep@fosterquan.com.Compliance & Ethics Professional May/June 2012+1 952 933 4977 or 888 277 4977 | www.corporatecompliance.org 51