Form I-9 audits can be a burden for employers, and if they reveal any mistakes or noncompliance the problems may only grow. However, one lawyer believes that investigations into hiring processes conducted by the Office of Special Counsel can be even worse.
The OSC, a division of the Department of Justice, doesn't conduct Form I-9 audits in the traditional sense. The office doesn't hunt down employers who could be backdating their documents or neglecting to fill out their Form I-9s. Instead the office investigates potential cases of discrimination. For example, an employer who requires a specific document for the Form I-9 may be charged with discriminating against new hires or citizenship status discrimination.
"OSC investigations and settlements are much more public than Form I-9 audits."
OSC checks could cause more damage than Form I-9 audits
Dan Brown, an attorney with Fragomen, Del Rey, Bernsen & Loewy, told Bloomberg BNA that OSC investigations could end up more burdensome than Form I-9 audits. For one thing, the fines the office issues seem to be growing. Numerous recent settlements total well over $100,000 when civil penalties and back pay requirements are combined. In November 2015 a $355,000 civil penalty was handed down to McDonald's following attempts to re-verify green card-holders and the month before a $445,000 fine was levied against Yellow Checker Star Transportation Co. following discrimination charges.
In addition, OSC investigations and settlements are much more public than Form I-9 audits. On top of the large dollar figures associated with these settlements, the public relations hit a company may take following an OSC check can be costly. The office issues press releases detailing its investigations and releases its settlement agreements to the public. Anyone can see when a company is being investigated and what the charges against it are, as well as the penalty it is required to pay.
OSC initiating more investigations
While OSC checks traditionally have been triggered by employee complaints, the office's standard practices are changing and with that it could begin launching investigations of its own accord more often. If something turns up that piques the DOJ division's interest, it has the authority to launch an investigation. One way the office is able to spot questionable trends is by reviewing E-Verify cases. If, for example, it becomes apparent that one employer has been requesting that new hires offer their green cards during the Form I-9 and E-Verify processes, the office may launch an investigation into hiring practices.
This places the onus on employers to make sure their hiring practices are compliant with the Immigration and Nationality Act, in addition to ensuring their Form I-9 information is perfect. This means being open to hiring anyone who is lawfully allowed to work in the U.S. and not requesting specific documents from new hires during background verification processes. Failure to comply with the INA can lead to an OSC investigation and a large civil penalty. The evidence is in cases such as those against McDonald's and Yellow Checker Star Transportation.
Learn how an electronic I-9 software solution can help to resolve discrimination issues during the Form I-9 process, by scheduling a demo today.