I.C.E. TO SIGNIFICANTLY INCREASE WORKSITE INVESTIGATIONS

I.C.E. to Significantly Increase Worksite Investigations

Not many employers read the “tea leaves” and foresaw what was coming when President Trump signed Executive Order 13788, entitled “Buy American and Hire American,” a broad directive which calls for the rigorous enforcement and administration of existing laws to protect the interests of US workers.

This put in motion a renewed and intensified focus on issues related to the I-9 form which is used to verify workers’ right to legally work in the United States. The Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan forewarned employers about what was to come in late 2017 when he spoke about ICE’s mission and stated that worksite enforcement is an important component of ICE’s overall strategy and pledged to increase the time spent by his agency on worksite audits by “four or five times.”

Just in case you think this is political rhetoric and it will blow over consider the following:

In October 2017, Asplundh Tree Experts, Co., one of the largest privately-held companies in the United States, headquartered in Willow Grove, Pennsylvania, (“Asplundh”), pleaded guilty to unlawfully employing aliens, in connection with a scheme in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States. Asplundh agreed to pay the $95 million dollar recovery fee, including $80 million dollars criminal forfeiture money judgment and $15 million dollars in civil payment. This represents the largest payment ever levied in an immigration case

In November 2017, Cloverhill, a subsidiary of Aryzta AG, Zurich, Switzerland, a maker of baked goods for fast-food chains and supermarkets said it’s struggling to run a Chicago bakery after it lost a third of its workers in a clampdown on 800 immigrants without sufficient documentation. The company reported that the Cloverhill issue has led to a 7 percent decline in their North American sales in the three months through October. This raid is one of the biggest U.S. employment headaches reported by a European company so far.
In January 2018, U.S. immigration agents descended on dozens of 7-Eleven stores and targeted about 100 stores nationwide to open employment audits and interview workers in what officials described as the largest operation against an employer under Donald Trump’s presidency.
Consider the impact that an ICE investigation could have. ICE can assess a monetary penalty for each I-9 that has one or more substantive or uncorrected technical violations using a sliding scale often known as the “matrix.” The exact fine will depend upon your overall error percentage as well as other subjective factors including the size of your business, good faith, and seriousness of the violations (to name a few). Employers with 50% or more errors will be fined at the highest amount – typically $935 per I-9. This does not include cost associated with the amount of time it takes to complete an I-9 audit and conduct overall program management.

In his article, ‘ICE Announces Up to Five-Fold Increase in Form i-9 worksite Inspections,’ John Fay, Immigration attorney, shared some proven strategies that employers can initiate right away to address the risks of an ICE worksite audit.1

(1) Compliance Awareness

Your first strategy is to emphasize the importance of the I-9 form and the process to your hiring managers and top management. Employers are charged with the responsibility to make sure they hire a legal workforce by completing the I-9 form in a timely and correct fashion.

(2) Conduct a Self-Audit

You should strongly consider working with experienced immigration counsel who can guide you in developing a remediation plan and ensures you follow all of the various rules for correcting past compliance mistakes.

(3) Create an I-9 Policy Document

Your policy should document how I-9s forms will be completed and reviewed for accuracy. Having standard operating procedures not only shows good faith, it also serves as a training document.

A good I-9 policy document will include the following essential details:

How (and when) will section 1 be completed by the new hire?
Who is responsible for verifying identity and employment eligibility documents and completing section 2?
Do we make/retain copies of supporting documents for all new hires, or only as required by E-Verify?
What is the I-9 process for rehires (complete section 3 when allowable or always prepare a new I-9?)
How do we handle remote hires?
How do we document name changes?
Who is responsible for managing reverifications (when required)?
Also the policy should include information on the following:

NOTICE PREPARATION
Employers should document the specific steps that will be taken when a Notice of Inspection is received including required notifications that may be required.

In addition, HR staff should also be aware of any “post-audit” notice requirements.

REVERIFICATION TRAINING
To minimize the risk of an improper reverification, employers should take the following action:

Make sure you clearly define who should be subject to reverification

Implement a reminder system to alert you of upcoming expirations which are occurring 90 to 120 days in the future so that you can properly inform your employees and give them time to provide you with updated documentation

Decide who will be responsible for actually performing the reverification and reviewing the original documents

(4) Use an Electronic I-9 System to Ensure Compliance Moving Forward

Maintaining I-9 compliance across your organization can be a moving target, given frequently changing compliance rules and the practical realities of employee turnover.2 In addition, the prospect of mandatory E-Verify may soon become a reality with the Legal Workforce Act, H.R. 3711, having been reintroduced by Rep. Lamar Smith. The bill would require all employers to use e-verify within two years.

Fausta Albi, immigration attorney for Larrabee Albi and Coker, LLP.generally advises clients to train employees at the front desk or receptionist area on how to handle audit requests.” Note that audit can be a particularly stressful occasion, and staff members may understandably want to be as accommodating as possible, however, under the new California law, employers can actually be penalized for being too helpful during the audit process

One more issue to make sure you advise your clients not to do is to become overly zealous and to decide to simply recertify all their employees just to be sure everyone has a correct I-9 and is legally employed. Sounds like a reasonable strategy, but in reality, will not only go afoul of some state laws it could get you into trouble with federal law as well.

Federal law prohibits improper reverification of current employees with so-called “unfair documentary practices” under the antidiscrimination provisions of the Immigration and Nationality Act. As an example, California’s Senate Bill 1001, in essence made unfair documentary practices a “fineable” offense under state law.

The ‘hand writing is on the wall,’ now is a critical time for employers to prepare for the emerging aggressiveness of ICE to avoid the consequences of these types of investigations which can result in the loss of workers, damage to company reputation and image, affect relationships with customers and the public in general.

March 2018

Message from the Editor:

Welcome to another edition of ‘Inside Background Screening’ our new newsletter. Our goal is to bring to you cutting edge news and information about what is happening in the background screening world to help keep you informed and to position you to make the best possible hiring decisions.

We hope you enjoy ‘Inside Background Screening’ and that you will share your interest and thoughts with us.

Lorenzo

Lorenzo Pugliano

CEO

Lpugliano@nsshire.com

EMPLOYMENT SCREENING


Jury Awards Nearly $70.6 Million in Yacht Rape Case

A stewardess on board the Endless Summer yacht, docked at Universal Marine Center in Fort Lauderdale in 2015, was awarded nearly $70.6 million in damages after she sued the yacht’s owner following an incident involving the yacht’s deckhand. Rafael Dowgwillowicz-Nowicki was arrested and charged with four counts of sexual battery after the woman reported he entered her cabin drunk and forced her to have sex with him, threatening to kill her if she did not go along with it. The lawsuit alleged that the yacht’s owner failed to provide proper security for the victim.

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Salary History Question Off Limits on Job Applications: What
Should Employers Do to Stay Compliant?

California recently joined a growing number of cities and states to pass a law that bans salary history questions. Prompted by concerns about gender- and race-based wage discrimination, the law is designed to prevent employers from using past compensation as a basis for current salary and benefits negotiations with job applicants. According to the U.S. Equal Employment Opportunity Commission (EEOC), 7,050 equal pay discrimination charges were filed against employers over a six-year time span. Employers can ensure compliance by removing all questions relating to salary history from job applications; revising screening and interviewing methods; and training hiring managers to ask the right questions.

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LEGAL ISSUES


Does Your State Ban the Box with Job Applications? What You Need to Know

As of September, more than 150 cities and counties and 29 states have adopted laws that limit what employers can ask job applicants. The “ban the box” legislation is designed to give individuals with a criminal history a fair chance at employment. The law, however, goes beyond requiring employers to remove a check box from application forms. It is important for businesses to become familiar with state and local laws, implement an attorney-approved, state-specific job application and modify hiring procedures to delay any criminal history inquiries until legally allowed.

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EEOC’s Background Check Guidance Suffers Loss in Texas Federal Court

In early February, a federal judge enjoined the Equal Employment Opportunity Commission (EEOC) and U.S. Attorney General from enforcing against the State of Texas the EEOC’s 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Guidance.”) The summary judgment was granted for the State of Texas on the basis of the EEOC’s issuance of the Guidance without providing notice to the public and an opportunity to comment, as required under the Administrative Procedures Act (APA). The EEOC continues to press lawsuits against employers concerning the use of criminal records for hiring and other employment purposes.

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Kansas City, Missouri, Enacts Ban-the-Box-Plus Ordinance

In early February, the Kansas City, Missouri City Council passed restrictions on employers’ inquiries into, and use of, criminal record information. Effective June 9, 2018, employers may not inquire about an applicant’s criminal history until after it has been determined that the individual is otherwise qualified for the position, and only after the applicant has been interviewed for the position. Before the effective date, employers are advised to revise job applications, interview guidelines and policies; review and make necessary changes to the sequence and timing of asking about an applicant’s criminal history; and implement guidelines and documentation that comply with the new Ordinance.

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Can Employers Legally Give a Bad Reference

Stephen Shore, partner at Ogletree Deakins International LLP, said that, while some employers often may shy away from giving a bad reference out of concern for a law suit, someone going to court over this situation is very rare. At the same time, he added, it is in an employer’s best interest that an outgoing employee find re-employment as soon as possible and a positive review can help secure a job. Either way, offering a truthful, objective commentary about the employee that can be defended with evidence, if necessary, is the best way to arm up against lawsuits.

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DRUG SCREENING

Testing Applicants

This month, Maine has become the first jurisdiction in the nation to protect workers from adverse employment action based on their use of marijuana and marijuana products. The “Question 1 – An Act to Legalize Marijuana” (The Act) was approved in November by Maine voters, which would permit the recreational use, retail sale and taxation of marijuana. The anti-discrimination provisions of the Act prohibit employers from refusing to employ or otherwise penalizing any person age 21 or older based on that person’s “consuming marijuana outside … the employer’s … property.” The Act does, however, allow employers to prohibit the use and possession of marijuana and marijuana products “in the workplace” and to “discipline employees who are under the influence of marijuana in the workplace.”

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The True Cost of Marijuana Legalization

CNN Money recently reported that $18 billion in tax revenue could be created if marijuana were legalized nationwide. But the benefits – both in terms of crime rates, health and revenue – are under scrutiny. Bills on the federal level have been introduced in both the House and the Senate that would not only allow marijuana-focused businesses to use the banking system, but would also remove marijuana as a Schedule I substance. Doing so may have detrimental effects on disability and worker’s compensation claims, drug testing, rent cost and litigation. Supporting the legalization of marijuana could lead to, among other ill effects, inconsistent work quality, poor concentration and lack of focus, and lowered productivity or erratic work patterns.

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Opioids, Marijuana and Substance Abuse Issues Present Both Familiar and Groundbreaking Challenges to Employers

With the advent of marijuana decriminalization and expanded use for medicinal purposes, the legal and human challenges regarding the opioid crisis also are expanding. One of the most challenging issues is knowing how and when to address an employee who appears to be struggling with an addiction issue. If the employer does choose to confront the employee, who denies addiction and refuses assistance, clear expectations for behavior and performance should be made clear. Other considerations include the return of an employee after rehab is completed, struggling family members and recreational or medicinal use of marijuana. Employers can prepare by enacting an employee assistance program (EAP), reviewing benefits offerings, updating policies and involving employees in community service or educational programs around mental health wellbeing.

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DATA PROTECTION & PRIVACY

6 Steps to Put HR on Track for GDPR Compliance with Employee Data

Workday’s chief privacy officer has offered six steps to help human resource teams bring employee data up to speed with the upcoming General Data Protection Regulation (GDPR). The deadline for compliance is May 25, but as many as 50% of companies affected will not be fully prepared. Those affected should start by inventorying the personal data that they currently have on employees. Corralling this pertinent information into one system is critical, as is determining who will have access. Communicating with and training employees about the GDPR will help to ensure compliance and it is helpful for companies to keep in mind that compliance will not only boost productivity and performance, but increase trust with employees and customers.


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Disclaimer: All information presented is for information purposes only and is not intended to provide professional or legal advice regarding actions to take in any situation. Nationwide Screening Services makes no representations for any products or services that are mentioned and accepts no responsibility for any actions or consequences taken without the guidance of a licensed attorney or professional consultant

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