A building maintenance company in Tampa, has paid the first E-Verify- related fine for immigration related discrimination. The DOJ Office of Special Counsel for Immigration Related Discrimination (OSC) filed suit against the company in an effort to resolve allegations that the company had retaliated against a former employee by refusing to rehire her and therefore was in violation of the anti-discrimination provision of the Immigration and Nationality Act (INA). The terms of the settlement agreement included a $2,000 civil penalty and $6,800 in monetary relief to the employee. The company will also receive training on the anti-discrimination provision and proper E-Verify procedures.
The facts of the case are set out step by step below. They provide a good opportunity for all E-Verify users to review their own company procedures to ensure that a similar scenario does not occur:
- Company received a tentative non-confirmation from E-Verify for a social security mismatch
- Employee was informed verbally, but was not provided with the paper notice (as required by law)
- Employee attempted to resolve in person at the Social Security Administration (SSA), but was unable to do so without the paper notice
- E-Verify provides erroneous final non-confirmation, stating that the employee did not have work eligibility because no action was taken by the SSA
- Employee was terminated due to final non-confirmation
- Employee complained to Office of Special Counsel (OSC)
- OSC confirmed work authorization and informed employer that employee was authorized to work
- Employer refused to reinstate employment
- OSC charged retaliation and the dispute was settled.
There are several reminders for employers, in order to avoid a similar situation, (1) It is crucial to provide the employee with the appropriate E-Verify paper notice if a tentative non-confirmation is received. Without the paper notice, the employee will be unable to remedy the issue thus causing E-Verify to issue a “final non-confirmation” of the employee’s work eligibility. (2) If a company receives a “final non-confirmation” based upon no show at the agency in question, the employer should follow-up with the employee regarding the steps that were taken to resolve the issue prior to terminating. (3) When the OSC calls, listen. If an employee feels as though they were wrongfully terminated, they may contact the OSC. The OSC investigates every call to its hotline. In this instance, the OSC contacted the employer and verified the employee’s work eligibility; however, the employer refused to reinstate employment. If the OSC calls, follow their guidance. If you choose not to comply, it is possible that you will violate provisions set forth in the immigration law and subsequently allow for an OSC investigation, which in turn often leads to an I-9 audit by Immigration and Customs Enforcement.