The Office of Special Counsel (“OSC”), within the Civil Rights Division of the U.S. Department of Justice (“DOJ”), has settled claims against an Oregon homecare provider that resulted from its failure to properly use E-Verify, the federal government’s electronic employment eligibility verification system. According to the OSC, ComForcare In-Home Care & Senior Services (“ComForcare”) received an initial tentative nonconfirmation (“TNC”) regarding an employee’s right to work. ComForcare not only never notified the employee of the TNC, but also refused to permit him to continue working while the TNC issues were resolved as federal law requires. In addition, OSC noted during its investigation that ComForcare violated federal law by requiring non-citizens, and those who appeared to be non-citizens, to produce specific documentation establishing employment authorization, instead of giving them the option of which documents to produce to satisfy their Form I-9 and E-Verify requirements. In the settlement, ComForcare agreed to back pay and a small civil fine. ComForcare also agreed to train its human resources about the requirements of federal law and to submit reporting and compliance monitoring for 18 months.
The small monetary penalties and fines that ComForcare agreed to pay do not reflect the actual costs of this enforcement proceeding. The legal and internal costs, coupled with the adverse publicity that resulted from this proceeding, combine to make compliance in this area a risk management priority. Moreover, the OSC’s focus on this aspect of the delivery of health care services is likely to increase. Employers in this industry that hire significant numbers of employees are those that the OSC likely will investigate. For this reason, it is prudent for health care employers to review the E-Verify compliance aspect of their operations and make sure that it is a significant component of their risk management activities.