Imagine starting the work day with an announcement the Government is suing your organization. That’s exactly what happened last week when the U.S. Department of Justice (DOJ) announced on May 29, 2012 it was suing Tuscany Hotel and Casino, LLC (“Tuscany”), located in Las Vegas, Nevada.
Based on the complaint (dated May 11, 2012), the DOJ’s Office of Special Counsel has been investigating this organization for months. While we don’t report on every single DOJ lawsuit related to I-9 issues, the facts of this case offer some valuable lessons to our readers.
Why the Government Is Suing
On June 7, 2011, the DOJ’s Civil Rights Division Office of Special Counsel (OSC) began investigating a complaint filed against Tuscany Hotel and Casino, alleging Tuscany violated certain anti-discrimination provisions of the Immigration and Nationality Act (INA).
During the course of the investigation of that single complaint, OSC decided to broaden its investigation of Tuscany to include “possible pattern or practice of document abuse against non-U.S. citizens.”
After multiple deadline extensions, OSC filed a complaint with the DOJ Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer (OCAHO), the administrative body that decides on these matters. The complaint alleges Tuscany violated the immigration-related unfair employment practices provisions of the INA (8 U.S.C. § 1324b). The government seeks:
• Payment of back wages and reinstatement for alleged victims
• Other appropriate injunctive measures
• Civil penalty for each violation
The Facts of the Case
According to the OSC complaint, here’s what happened (short version). (These facts are the government’s version and may be disputed by Tuscany.)
In late December 2010, Tuscany allegedly committed document abuse and discriminated against an employee because of that employee’s citizenship status. Six months later, that employee lodged a complaint with OSC on June 7, 2011, which triggered OSC’s investigation of Tuscany. In October of 2011, OSC expanded its investigations of Tuscany to include other patterns and practices that may have resulted in discriminatory results.
During its investigations, OSC found that from January 2006 to October 2011, Tuscany applied a different standard of employment eligibility verification practice to its non-U.S. citizen employees, including Legal Permanent Residents possessing “greencards”:
(1) Regularly recorded the expiration dates of work authorization documents;
(2) Required employees to who elected to present List B and List C documents to also provide List A documents expiration dates;
(3) Recorded those expiration dates in its payroll system;
(4) Tracked those expiration dates for future re-verification; and,
(5) During the re-verification process, required to see only work authorization documents issued by the Department of Homeland Security.
Tuscany employees who were U.S. citizens were not subjected to the above practices (that were in violation of the INA).
Although this is an ongoing case, and assuming all the alleged facts are true, our readers should be very vigilant about unevenly applied employment practices when it comes to the Form I-9 employment eligibility verification process.
(1) The saying “I love all my children the same” should probably be applied in the employment eligibility verification process. The many publicized cases over the years makes clear that when employers apply one standard practice to one group and another standard to another group that is expressly forbidden by law, there will be consequences. Over documentation and document abuse (as highlighted Attorney Allen Orr, Jr., of Orr Immigration Law Firm P.C.) can easily create problems for employers.
Takeaway: We encourage employers to work with their attorneys to evaluate their internal I-9 policies. Does it comply with the law? Are there exceptions that need to be made that can comply with the law? Are practices applied evenly to the workforce?
(2) This particular case did not discuss issues of unauthorized workers, but rather, how an employer’s conduct allegedly violated the law. When employers do not actively recruit or employ an international workforce, employers can easily believe that their internal practices are not vulnerable to violations of the law. As we have seen, however, one complaint to OSC by an authorized worker can lead to serious charges.
Takeaway: A homogenous workforce can give employers a false sense of security. Policies that actively encourage the hiring of one group of individuals, absent a valid legal basis, can also raise other employment issues. As a risk management best practice, employers should consult with experienced employment and immigration attorneys to determine how its I-9 processes stack up against industry norms and against the law.
(3) Many employers utilize payroll systems to help manage its internal human resource data. When properly deployed, payroll systems help streamline many business processes and are very valuable. Because the I-9 employment eligibility verification process usually resides within the HR department, it’s easy for employers to group I-9 and payroll together, especially where electronic I-9 software is concerned. The danger, however, occurs when employers integrate these processes in a way that threatens the “legal compliance” aspect of the I-9.
Takeaway: The I-9 process is a compliance risk for employers and should be managed as a risk rather than perfunctory form process. The level of scrutiny the government has paid to I-9 non-compliance versus payroll errors is highly disproportionate. Because the law specifically forbids certain practices related to I-9 processing and assigns civil penalties and other relief, employers who are relying on a payroll system should consult with experienced legal counsel to determine how to integrate the payroll system with the I-9 process (if at all) and when to do so. More importantly, employers who are currently or anticipate using an all-in-one software (that integrates electronic I-9, payroll, ATS and benefits) should seriously evaluate if the software inadvertently puts an employer at heightened risk of I-9 non-compliance, especially where the vendor lacks the proper legal guidance on I-9 compliance.
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Originally published by LawLogix Group Inc Reprinted by permission
Ann Cun is a U.S. based immigration attorney who has helped companies in the technology, science, business, sports, entertainment and arts fields secure complex work visas for their employees. With more than a decade of experience as a paralegal and attorney, Ms. Cun possesses a stellar record of success. Her legal expertise also includes conducting internal I-9 audits for companies and developing I-9 compliant strategies and solutions. She is a graduate of UCLA and UC Hastings School of Law and has been invited to speak by the Bar Association of San Francisco and the American Immigration Lawyers Association on U.S. immigration related topics, as well as other international conferences. Ms. Cun is a contributing author and currently serves as Counsel and Principal Editor for LawLogix Group.