Tuesday, June 28, 2016

Colorado Repeals Law Requiring "Affirmation Form" After Each Completed Form I-9

Effective August 10, 2016  

"Colorado-Affirmation-Form Requirements are Eliminated for Employers in the State of Colorado"

Since January 1, 2007, the Colorado employment verification law (§ 8-2-122, C.R.S.) has required Colorado employers to verify and document the work authorization of all newly hired employees by completing the Colorado Affirmation Form.

2016 Changes to the Law:

House Bill 16-1114 eliminates the Colorado Affirmation Form requirements, beginning August 10, 2016. The legislature also eliminated the rather hefty penalty provision, while noting however that the CDL can still initiate random audits to inspect the Forms I-9.

Next Steps for Colorado Employers:

Based on the upcoming changes to the Colorado law, employers should carefully review their current policies and practices and create a transition plan for phasing out the “Colorado Affirmation Form” requirements.

Important Considerations:

The new law goes into effect on August 10, 2016.
Until that date arrives, continue to complete the Colorado Attestation Form and retain document copies for all newly hired Colorado employees according to the program rules. 

HR and hiring managers should be instructed well in advance that you will no longer be required to complete the separate Colorado Affirmation Form for newly hired Colorado employees beginning on August 10, 2016. 

On August 10, 2016, the Colorado Attestation Form “pop-up alert” and reference link on the electronic Form I-9 will be permanently removed.

You will need to decide whether to continue retaining copies of all I-9 source documents for your Colorado locations.
Retention of source documents is optional under the federal I-9 rules.

The new law does not specifically address what to do with all of those previously completed Colorado Affirmation Forms and document copies. Employers may wish to adopt a conservative approach and retain them for the duration of the individual’s employment, just in case of a CDL audit.
Once the employee is terminated, the employer may securely dispose of the Colorado Affirmation Form and any source documents that were retained separately pursuant to the requirement. As always, employers must continue to retain the Form I-9 records for the later of 3 years after the employee was hired or one year after termination.

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Wednesday, March 30, 2016

Newly Proposed Form I-9 Comment Period Extended

The current Form I-9 is set to expire March 31, 2016; however, USCIS is still accepting comments on  its newly proposed Form I-9 until April 27, 2016.  The new I-9 Form may be available shortly thereafter.  As of now, USCIS has not indicated the  specific date that the new Form I-9 will be required.  We will keep you posted as we find out more.

For more details on the the proposed revisions, you may click here 

Tuesday, February 23, 2016

Businessman Personally Charged for Illegal Alien Employed at Hotels

Just recently, a hotel operator was investigated for knowingly hiring an illegal alien and has now pled guilty to the charges. Paul Younes owned and managed several hotels including one that employed an illegal alien. Rather than ensuring his company was following federal law, businessman Paul Younes instead continued to employ her while going to certain lengths to make it all happen.

To protect the employee and keep her working at his hotel, Paul Younes even arranged for the individual to be removed from regular payroll and "re-hired" her as an independent contractor. She would be the only employee there with these unique conditions and the U.S. government eventually investigated. To maintain her cover and keep employment going for the illegal alien, Paul Younes even changed her name and this all did not sit well with the federal government. 

While Paul Younes apologized and took full responsibility, it is not just he who will suffer the consequences as Kearney Hospitality Inc. also has a suit against it by the Federal Government. The potential result may well see a half-million dollar fine and up to five years of probation for the company. As for Mr. Younes, he faces six months in prison along with a fine and is another example of how seriously employment-verification laws are enforced. 

In another very recent case, a fruit picking company that had been operating under the unique demands of managing temporary labor, settled with the Office of Special Counsel. The investigation into Rio Grande Pak Foods, Ltd. revealed that while the operators had to deal with hiring and providing workers very quickly, they also had failed to ensure rules were followed. 

Some of the workers who were included in the governments investigation were even denied by Rio Grande Pak Foods, Ltd. as ever being their employer. Other individuals would complete Form I-9s using the same social security number that was simply shared around the room and the company also violated these rules in a pattern or practice. 

As the year is well underway, employers may take the opportunity to gain insight into their own practices and make any improvements before its too late. The government will only increase the responsibility employers currently have to verify workers and more importantly will continue with all enforcement efforts. The effort taken by employers to enter business, gain clients, and maintain their growth is surely worth the trouble to prevent any liabilities caused by Form I-9 violations. 

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Friday, November 20, 2015

Bigger Than Ecuador, McDonalds Corp. Investigated by US Justice Department

A little known federal law has resulted in the world’s largest restaurant chain, McDonalds Corp, into having to sign a settlement agreement with the US Justice Department on November 19, 2015. This concludes an investigation into unfair documentary practices by the company going back several years, but it is not the end of the road just yet.

The headlines this morning all boasted the $355,000 civil fine levied against McDonalds, but this is a company with an economy of its own larger than the country of Ecuador! Instead, the real problem at McDonalds right now is the consequences and unforeseen costs of complying with the settlement as well as federal law.

So what was all this about anyway? Why would an organization with vast resources and layers of compliance officers end up in the cross hairs of the Justice Department for something as asking workers who were permanent residents to produce updated documents? For many folks this may seem like the logical thing to do, but assuming or being creative about federal law does not sit well with federal investigators.

Federal Law says that two parties are exempt from having their employment re-verified, American Citizens and Permanent Residents. This is the one group who will ultimately benefit from immigration law as legal residents who belong in this country and they are not to be asked for additional documentation after having already done so. Even the compliance layers at McDonalds could not protect against this violation and it will now cost them well past the civil fine.

The problem perhaps is the constant change to employment verification laws over the past 30 years and American voters are still not satisfied enough is being done. Employers are slow to realize the serious consequences and the very specific details that come into play for verifying employment eligibility. No longer can these regulations be overlooked or corporate practices assumed to be up to date, it is the responsibility of all American employers and the Justice Department is only increasing resources to ensure this.

As this week concludes and the headlines begin to fade away, the rest of the settlement agreement only brings to light the upcoming troubles still in store for McDonalds Corp. Those details include such things as having to produce documentation and regular reports for the Justice Department’s Office of Special Counsel. Additionally, the company will have to pay for training for all Human Resources Consultants and General Managers.

Five regularly scheduled trainings per month will be attended with the company having to detail and report the attendance records before sending them to the government. Back pay will be offered to workers identified as having been affected by these practices and this even includes people who were terminated. Additionally, the settlement doesn’t bar further suits or investigations into the company and it also specifically opens the company’s documentation and practices to regular review and scrutiny.

McDonalds, with annual hiring of over a million workers, has just found itself a babysitter for the next two years and that problem is far worse than the $355,000 fine.

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Wednesday, November 4, 2015

Violations in Employment Verification Nets Justice Department Multiple Settlements

Over the past several weeks the Justice Department has been issuing nearly regular press releases announcing more and more organizations caught with violations in employment verification practices. These also include an additional complaint being filed against Nebraska Beef Ltd., on October 13, 2015 for breaching a settlement agreement that was just concluded on August 24, 2015. 

The settlement agreement had resolved the Justice Department’s investigation into discriminatory document abuse, specifically on citizenship status of Nebraska Beef’s employees. The company has not paid the $200,000 civil penalty they had agreed to and the case is back on the federal docket.

The very next day October 14, 2015 marked another settlement between Postal Express and the Justice Department following an investigation into the organization. The charge was an employee had been unlawfully put through re-verification of the employment eligibility process and this resulted in his suspension when he couldn’t produce an unexpired green card to his employer.

Postal Express reinstated the employee and paid him lost wages once the investigation began by the Office of Special Counsel. The settlement found that Postal Express unlawfully practiced document abuse and would pay a small civil penalty of $1,000 to the federal government. In addition, the company would have to train employees on the anti-discrimination provision of the INA and revise their policies to avoid discrimination.

Only a day later on October 15 another settlement agreement was reached, concluding yet another investigation. This time the Justice Department was investigating North American Shipbuilding and the settlement resolved the investigation but it came with a cost. 

Among other measures of remediation the Justice Department announced the company would have to submit to training by the Office of Special Counsel, pay the charging party $15,000 in back pay plus a civil penalty to the United States in the amount of $1,750. All of this was the result of North American Shipbuilding retaliating against an employee by barring the person from the company’s premises after the employee filed a charge with the Office of Special Counsel.

As the prior settlement was concluded another was already in the works against three Las Vegas taxicab companies. These were Nevada Yellow Cab Corporation, Nevada Checker Cab Corporation, and Nevada Star Cab Corporation. The charge initially followed an investigation that the companies discriminated against employees who were work authorized because of they were immigrants. These people were required to produce different documentation than employees who were American citizens. The law provides a list of three different options, List A or List B with List C documents.

Each person may choose from these which they would like to provide and employers do end up in trouble when they wrongly request only specific options from the List of Acceptable Documents. This settlement required a penalty of $445,000 to the United States, employee training on anti-discrimination provisions, revised company policies, place six full page advertisements in an industry specific publication for a year advising people of their rights under 8 U.S.C. § 1324b. 

The cab companies would each be subject to departmental monitoring for a period of three years. Unfortunately, this settlement is the result of practices that never had to occur in the first place and cost heavily.

And more recently on October 22, the Justice Department reached yet another settlement with Miami-Dade County Public Schools. The Florida organization was the subject of an investigation that was launched to see if there were unfair documentary practices against non-U.S. citizens during employment verification. The Office of Special Counsel found that Miami-Dade County Public Schools required those who weren’t American citizens to produce more documentation than legally necessary. 

This unfairly burdened people with unlawful requests and these same requests were not asked of others who were American citizens. The organization agreed to pay a civil penalty of $90,000 and establish a fund of $125,000 in back pay to compensate those who had suffered losses as a result. The organization will also submit to training and compliance monitoring for three years.

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Tuesday, August 25, 2015

Small Hiring Detail at Nebraska Beef Ltd. Results in Justice Department Investigation & Settlement

Three years ago, the Justice Department contacted a meatpacking plant based in Omaha, Nebraska; informing of an investigation initiated into the company’s labor practices.

On August 24, 2015 the Office of Special Counsel at the U.S. Department of Justice for Immigration-Related Unfair Employment Practices, announced that a settlement had been reached with Nebraska Beef Ltd., a private company with hundreds of employees at its single plant in Omaha.

While it was successful in its operations and and had the right pieces in place, Nebraska Beef Ltd. had a single distinction between the hiring process for US citizens and non-citizens; a distinction that was illegal and would prove to cost substantially. Specifically, Nebraska Beef Ltd., had been asking non-citizen employees to produce certain documentation to verify employment-eligibility.

But this “mistake” wasn’t extended to citizens, who indeed were allowed to choose what documentation they wanted to present from a list of acceptable documentation. This practice is unlawful discrimination and in violation of the Immigration and Nationality Act (INA).

The settlement on the surface may appear to be a conclusion to the problems Nebraska Beef Ltd. is facing, but when reading the terms of the settlement the company agreed to, it is clear this will be a half decade long ordeal. Three years of investigation, dialogue, remediation efforts and another two years at least of legal requirements imposed on Nebraska Beef before they can fully return to normal.

The civil fine of $200,000.00 is due in just a few days, but there are more stipulations required by the federal judge handling the case. In example, for the next two years the company will have to make regular reports of its operations, who it hires, what training has been provided, the list of attendees at the required training, an audit of potential or past employees must also be produced. Nebraska Beef has to contact anyone who has applied for a job and provide them with an offer of relief from the uncapped fund they are responsible for establishing. 

Two years of monitoring by the government and reporting regularly to them will now become part of regular operations at Nebraska Beef Ltd. Because the full extent of possible victims of their discriminatory violations is not yet known, the un-capped fund is a yet undetermined cost the company will have to bear. In addition, they must pay the costs of locating and contacting the victims, as well as the additional training imposed during regular hours for Nebraska Beef's employees.

The entire problem rose from a single practice that could have been stopped had regular training on current and updated laws occurred. All of this would never have happened if Nebraska Beef’s paid attention to the regulations that govern their labor practices, they could have at least re-mediated the issue before it got out of hand. 

It is a hardly hidden stipulation in the rule books that says employers may not discriminate and yet, something as clear as day was entirely missed by a large company with hundreds of millions in sales. Now its too late to avoid the consequences, but for other employers this is a perfect example of what can happen to anyone. Form I-9 compliance has never been more important and employers have never seen enforcement at this level. Ever. 

Nebraska Beef is just one of many and even now, there is no doubt that there are other ongoing investigations that will soon make the news like this did.

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Thursday, August 6, 2015

The Six Hundred Thousand Dollar Letter

The company behind major San Francisco events like the 2013 America’s Cup, the opening of the Bay Bridge, as well as two World Series parades, is no stranger to attending to every detail. 

But just recently on July 8th, the specific details Hartmann Studios Inc., actually had been missing took the Department of Justice seventy-seven pages to publish. With the concluding signatures, the order ends with a record-breaking fine of over $600,000; the largest amount ever issued for an administrative violation.

While the news was just recently broken, the story begins much further back to 2011. The company had revenues to compete with Tiger Woods and made Bay Area news for the millions in contracts won. Hartmann Studios Inc. had hundreds of employees and seemed prepared for anything- except for the special agent from Immigration and Customs who showed up with a letter for a routine inspection. Unlike many other employers in the same situation, Hartmann Studios Inc. had reason to panic.

Even with management’s record keeping practices, experience with a 1994 audit, and collection of documents forwarded by the employees unions, the employment verification requirements weren’t legally met. The regulations are nearly thirty years old but even the company’s own executives said they were unaware employers had to sign the forms. 

Employers may have managers who aren’t familiar with legal requirements and managers may have employers who are in the dark, but the law just isn’t flexible. Its important to ensure all aspects are correctly followed without applying creative alternatives. The judge made it clear that there is no substitute for noncompliance and severe penalties will be established. In this case, the fine was actually reduced and then issued as “motivation to conform”.

Enforcement has gone up considerably and the amount of fines, settlements, investigations making the news is an indicator of more to come. Employers have nothing to worry about if they are well-versed in their obligations and have controls in place to monitor for and remedy any violations.

Hartmann Studios Inc. has learned the hard way that any employer should except a guest from the government, but its the amount of preparation that will determine if the visit is brief or will last four years. 

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