As E-verify usage becomes more common, especially with an increasing number of states passing immigration compliance laws which mandate the use of E-verify for new hires, employers need to be aware of what it is - and what it is not - so they can use it without getting into trouble.
It appears as if the federal Justice Department is taking this issue seriously, first by warning of plans to ramp up investigations and enforcement actions for E-verify related acts of employment discrimination and then by taking action against employers who misuse of E-verify has an adverse impact upon employees. These are certainly warning signs those who use E-verify - or plan to - should take seriously.
Two years ago, Assistant Attorney General for the Civil Rights Division Thomas E. Perez testified before the Senate Judiciary Committee, cautioning that the agency would begin looking for and enforcing acts of misuse of E-verify in its efforts to prevent discrimination against immigrant populations:
Also in the employment context, in addition to work under Title VII and USERRA, the Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices is responsible for enforcing the non-discrimination provision of the Immigration and Nationality Act. The Office carries out its mission through investigations based on charges filed by workers, as well as through telephone interventions, technical assistance, and outreach to both workers and employers. Last month, the Division signed a Memorandum of Understanding with U.S. Citizenship and Immigration Services to share information regarding possible discriminatory use of E-Verify.
Indications are the agency is taking these efforts seriously. One such instance was the recently-announced settlement with a Tampa janitorial services agency for not properly following E-verify procedures. In the settlement agreement, the employer agreed to:
Under the terms of the settlement agreement, the company has agreed to pay $6,800 in monetary relief to the injured party, which included back pay and interest, along with a $2,000 civil penalty. The company has 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.
The employer made two mistakes: one, not providing proper instructions to the employee when flagged by E-Verify, which resulted in a mistaken notice of Final Non-Confirmation, and then refusing to allow the employee to return to work after being notified of the employee's eligibility to work.
When a new hire is flagged after being entered into E-Verify, employers must access and print a notice in either English or Spanish advising the employee of their rights and appeal procedures. No employer will be penalized for following the system rules and notices via updates provided via E-verify system, but as with this case, penalties can apply for NOT following rules and notifications provided.
To help keep employers who use E-Verify out of trouble, the Justice Department posted a Dos and Don'ts resource online.