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I-9 E-Verify Immigration Compliance

Company’s Response to E-Verify Tentative Non-confirmation is Costly by Bruce Buchanan, Siskind Susser

Rating: 2 votes, 5.00 average.

Diversified Maintenance Systems LLC (DMS), a Tampa-based provider of janitorial and facilities maintenance services, has agreed to settle a case with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), a part of the Department of Justice, resolving allegations that the company violated the anti-discrimination provision of the Immigration and
Nationality Act (INA) when it failed to fully reinstate an employee in retaliation for asserting her right to work in the U.S.


An employee alleged DMS failed to provide her with proper notice and instructions for contesting a tentative non-confirmation in E-Verify.  While the employee immediately visited the Social Security Administration (SSA) after receiving verbal notice of the initial data mismatch and instructions from her supervisor, the employee alleged the supervisor failed to give her the proper E-Verify paperwork which would have enabled the SSA to resolve the mismatch.   As a result, E-Verify provided an erroneous "final non-confirmation" to DMS, stating the employee was not eligible to work in the U.S.   


Thereafter, DMS terminated the employee, and the employee contacted the E-Verify hotline for
help.   An E-Verify agent notified DMS that the employee was authorized to work, but the employee's manager refused to reinstate her, allegedly because she contacted E-Verify and asserted her right to work under the anti-discrimination provision of the INA.    


The INA protects employees from discriminatory practices in the employment eligibility verification process, including E-Verify, and prohibits employers from retaliating against individuals who assert their rights or oppose a practice that is illegal under the provision. 


Under the settlement agreement, DMS agreed to pay $6,800 in backpay and interest to the employee and a $2,000 civil penalty.  The company also agreed to training by the Justice Department on the anti-discrimination provision, and training by the Department of Homeland Security on proper E-Verify procedures.   


This settlement is a wonderful example of how employers should obtain immigration counsel. Specifically, someone who is experienced in employment compliance to help them decide whether to implement E-Verify, guide them on its implementation and confer with when dealing with tentative non-confirmations.


 

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