The Errors that Employers Commit
Some hiring mistakes end up costing employers a lot of money and time, and loss of reputation. This past October, the Office of Special Counsel (OSC) arrived at an agreement with the New Jersey-based home healthcare provider, Advantage Home Care, LLC, which was charged for violating the anti-discrimination provision of the Immigration and Nationality Act (INA). Advantage Home Care was asking new hires, who were lawful permanent residents, to present additional and different documents during the Form I-9 employment eligibility verification process.
The claim was brought to OSC by an individual who applied for a job. When the individual applied to Advantage Home Care, the company ran a criminal background check and wrongly determined that the individual was using an invalid Social Security number (SSN). The individual went to the Social Security Administration, which concluded that the SSN was valid; however, Advantage Home Care would not employ the applicant. Upon further investigation, OSC found that Advantage Home Care required lawful permanent residents to provide more documents to validate work authorization than US citizens. The INA prohibits such discrimination.
In early October, similar charges were brought upon Las Vegas-based Tuscany Hotel and Casino, LLC. The company was also found to be using discriminatory practices during the employment eligibility verification and re-verification processes.
A complaint was filed with OSC in May 2012, asserting that Tuscany was asking non-citizen job applicants to provide additional or different documents during the work authorization process; US Citizen applicants were not asked to present more documents. Once hired, and in order to remain employed, the company then asked non-citizen employees to provide further document requests during the re-verification process. Moreover, non-citizen employees were subject to severe reviews, which US citizen employees didn’t have to endure.
Expensive Mistakes for Employers
Per OSC’s agreement with Advantage Home Care, the company will pay $1,633 to the individual and $46,575 in civil penalties to the US. Advantage Home Care must also pay back pay to previous job applicants who suffered financially from the company’s policy. Additionally, the company’s human resources staff will be trained in employers’ responsibilities and best practices to prevent discrimination during the employment eligibility verification process. In order to ensure compliance, Advantage Home Care’s staff will also be monitored by OSC for three years.
Under the agreement, Tuscany will pay $49,000 in civil penalties to the US and make payments to the complainant. Tuscany will administer new employment eligibility verification policies and practices that will eradicate any employment-based discrimination. Additionally, the company will train its staff on how best to avoid discrimination in the verification process, and will be monitored for compliance.
Employers must train HR personnel on the proper documentation methods for ‘onboarding’ employees. In addition to training, written guidance or manuals for proper intake are necessary to avoid financial penalties, and work stoppage due to worksite audit. Losses may occur because workers are redirected to answering the government, providing requested documents and undergoing mandatory training as part of the worksite enforcement action. An employer’s reputation can suffer because the audit and fines are reported on government and public websites, and news media. Employers can use an immigration attorney to prevent these costly mistakes.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Lowenbaum Partnership, LLC
St. Louis, Missouri
The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.
Copyright 2012. All rights reserved.
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