PDQ Legal

E-Verify News

State E-Verify and I-9 Laws
South Carolina: Audits Conducted, Citations Issued, But Initial Fines Waived South Carolina’s 2008 law requiring employers to take additional steps to verify the work status of newly hired persons is in the process of being implemented. The law’s requirement that employers either in E-Verify (the electronic employment eligibility verification system operated by United States Citizenship and Immigration Services) or review an approved driver’s license participate or state-issued identification card of newly-hired employees is being phased in. Currently private employers with 100 or more employees are subject to the additional verification requirement. After some initial aggressive enforcement tactics last summer, the South Carolina Department of Labor, Licensing and Regulations (LLR) has settled into a more defined process for auditing compliance with the law.

More recently, reports indicate that LLR has been steadily auditing businesses and processing tips from the public about possible violators, with nearly 90 audits being performed in the month of January. Over 30 of the audited businesses were cited for violations. Fines for non-compliance have been issued including one for $42,500. However, the penalties are waived for a first-time violation and if corrective steps are immediately taken by affected employers. The audits will likely continue as the law is expanded to include all businesses on July 1, 2010. Employers are reminded to review current verification procedures to ensure compliance with not only federal law but also state law.

Oklahoma: Injunction Against E-Verify Requirement Reversed
Oklahoma’s Taxpayer and Citizen Protection Act of 2007 contains a provision requiring employers that contract with the state to use E-Verify, the Internet-based system operated by United States Citizenship and Immigration Services that allows employers to verify the employment eligibility of employees. This provision of the law was challenged as unconstitutional by several business organizations led by the U.S. Chamber of Commerce. The primary argument of the U.S. Chamber was that the law conflicts with the federal Immigration Reform and Control Act (IRCA) and therefore is preempted.
In June 2008, a federal district court found that the U.S. Chamber was likely to prevail on the merits and therefore issued a preliminary injunction against enforcement of the law’s E-Verify provision. On appeal, the Tenth Circuit Court of Appeals reversed the district court’s grant of a preliminary injunction against enforcement of the E-Verify provision. Thus, it appears that Oklahoma may soon be able to enforce the E-Verify provisions of the law.

Work-bias claims based on disability up nationally

The number of workers claiming job discrimination based on disability, religion or national origin surged to new highs last year, as federal job-bias complaints overall stayed at near-record levels.

On January 6, 2010, the Equal Employment Opportunity Commission (EEOC) said that charges of disability discrimination rose by about 10%, the largest increase of any category. The increase coincided with changes to the Americans with Disabilities Act last year that made it easier for people with epilepsy, diabetes and other treatable conditions to claim they are disabled.

Charges of discrimination based on national origin rose by about 5%, while religious discrimination claims rose less than 1%. Allegations of race discrimination remained the most frequently filed complaint accounting for about 36% of all filings last year.

The EEOC said that the near-historic level of complaints overall may be due to factors including economic conditions, increased diversity and demographic shifts in the workforce.

Law Extends USCIS Programs

Citizenship and Immigration Services (USCIS) advises its customers that the Department of Homeland Security (DHS) Appropriations Act of 2010, signed by the President on Oct. 28, 2009, extends the following USCIS programs until Sept. 30, 2012, including E-Verify.

E-Verify, an Internet-based system operated by DHS in partnership with the SSA, allows participating employers to electronically verify the employment eligibility of their newly hired employees. More than 168,000 participating employers at nearly 640,000 worksites nationwide currently use the program. Since Oct. 1, 2009, more than 1.3 million employment verification queries have been run through the system and approximately 96.9 percent of all queries are now automatically confirmed without any need for employee action.

E-Verify Program Likely to Continue

The Senate has opted to maintain the E-Verify program for three more years as part of a 44 billion dollar funding bill for the Department of Homeland Security that passed on a 79 - 19 vote.

The House has passed a similiar extension including a provision that would tighten the verification process by including thumbprints or other biometric traits to cut down on forgeries.

Senate Approves One-month Extension for E-verify Program

The Senate Sept. 30 approved, with a mostly party line 62-38 vote, a continuing resolution for Labor Department funding that contains a one-month extension for four immigration-related programs, including E-Verify, and one veterans’ job program.

The resolution extends funding for the Labor Department, as well as many other federal agencies, until Oct. 31 at fiscal year 2009 levels to allow lawmakers to complete work on the FY 2010 Labor-HHS appropriations bill (H.R. 3293). The department’s funding was set to expire Sept. 30.

The resolution, which accompanies the fiscal year 2010 legislative branch appropriations bill (H.R. 2918), would extend the programs’ current expiration date from Sept. 30 to Oct. 31. President Obama is expected to sign the bill.

The final passage by the Senate came after two procedural votes aimed at killing the package. Senate Republicans took issue with various military and Postal Service provisions in the bill.

California deficit causes court closures

For the first time in California history, the courts will close across the state one day each month because there simply is not enough money to keep them open.

The California Judicial Council, the policymaking arm of the state courts, voted Wednesday to shutter every court in the state the third Wednesday of every month, an unprecedented response to the state’s staggering budget deficits. With a $414 million budget gap for the California court system, the 21-member council unanimously backed the courthouse closure option to save an estimated $85 million, despite widespread discomfort with the idea.

PDQ Legal Services will continue to monitor this situation and minimize the impact to our quick turnaround process. We will keep you informed with respect to any further changes.

SSA No-Match Letters Update

On August 19th the below Proposed Rule (provided in part) was published in the Federal Register announcing the rescission of regulations which would have placed onerous requirements on employers relating to the receipt of no-match letters from the Social Security Administration and the Department of Homeland Security. Essentially, under the amendments proposed by DHS, receipt of a no-match letter may have been sufficient, by itself, to put an employer on notice, and thus impart constructive knowledge, that employees referenced in the letter may not be work- authorized. Employers should note however that DHS’ rescission of these regulations is because instead they will focus on immigration compliance through E-Verify, IMAGE and other verification programs.

Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Rescission

SUMMARY: The Department of Homeland Security (DHS) proposes to amend its regulations by rescinding the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

Firm Pays $2M for Bad Hire

A Lynnfield, MA investment firm is paying nearly $2 million to settle charges of failing to supervise a broker who, after being arrested on a charge of rape, allegedly admitted stealing $3 million from clients. Secretary of the Commonwealth William Galvin announced yesterday that Investors Capital Corp. agreed to cover $1.7 million of client losses and pay a $250,000 fine for lax supervision of Stephen Clifford. “Whether you’re Bernie Madoff or some guy from around the corner, it doesn’t matter,” Galvin told the Herald. “You need procedures in place to protect investors.” Investors Capital is settling allegations that it failed to properly supervise Clifford or run adequate background checks before giving him a job. Galvin claimed Investors Capital founder Theodore Charles, a longtime Clifford friend, ordered the man hired even though a credit check showed the suspect had some $442,000 in debts.

To read the full article go to: http://www.istockanalyst.com/article/viewiStockNews/articleid/3246790

FTC Delays Enforcement of “Red Flags” Rules

The Federal Trade Commission Will Grant Three-Month Delay of Enforcement of ‘Red Flags’ Rule Requiring Creditors and Financial Institutions to Adopt Identity Theft Prevention Programs

The Federal Trade Commission will delay enforcement of the new “Red Flags Rule” until August 1, 2009, to give creditors and financial institutions more time to develop and implement written identity theft prevention programs. For entities that have a low risk of identity theft, such as businesses that know their customers personally, the Commission will soon release a template to help them comply with the law. Today’s announcement does not affect other federal agencies’ enforcement of the original November 1, 2008 compliance deadline for institutions subject to their oversight.

“Given the ongoing debate about whether Congress wrote this provision too broadly, delaying enforcement of the Red Flags Rule will allow industries and associations to share guidance with their members, provide low-risk entities an opportunity to use the template in developing their programs, and give Congress time to consider the issue further,” FTC Chairman Jon Leibowitz said.

During outreach efforts last year, the FTC staff learned that some industries and entities within the agency’s jurisdiction were uncertain about their coverage under the Red Flags Rule. During this time, FTC staff developed and published materials to help explain what types of entities are covered, and how they might develop their identity theft prevention programs. Among these materials were an alert on the Rule’s requirements, www.ftc.gov/bcp/edu/pubs/business/alerts/alt050.shtm, and a Web site with more resources to help covered entities design and implement identity theft prevention programs, www.ftc.gov/redflagsrule. The compliance template will be available on this Web site.