Illegal immigration, illegal question: how firm ran afoul of E-Verify

When the federal E-Verify system, designed to stem illegal immigration, flagged a prospective employee, an Oregon company asked her for more documentation. That was a bad idea. 

A home health-care company in Oregon has agreed to settle a federal complaint filed by a prospective employee who was asked to provide extra documentation after a check of the government’s E-Verify system raised questions about her eligibility to work.

As part of the settlement, the company, ComForcare In-Home Care & Senior Services, said it would pay the US government $1,210 in civil penalties, and compensate the prospective female employee for back pay of $525.

The offense: company officials asked her to produce additional immigration documents that she is not required to produce.

With an estimated 11 million illegal immigrants in the US, the E-Verify system is designed to help employers quickly and easily identify individuals who are authorized to work. It also provides companies a defense against charges that they hired illegal immigrants.

But the system also includes a rigid set of requirements about what can and cannot be requested of a prospective employee.

After the E-Verify system raised a red flag, officials with the Tigard, Ore.-based company refused to hire the woman unless she produced naturalization papers that would prove she could legally work in the US.

The woman, unidentified in a Justice Department release, was a newly naturalized citizen, a status not reflected in the government’s database.

The woman filed a complaint with the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices.

An investigation revealed that ComForcare “failed to provide the [prospective employee] with written notice of her tentative non-confirmation, as required by E-Verify, demanded that she produce an ‘alien card,’ and did not allow her to start working,” according to a Justice Department statement.

“When [the prospective employee] informed ComForcare that, as a naturalized citizen, she did not possess an alien card, ComForcare demanded her naturalization papers even though she had already produced proper work authorization documents,” the Justice Department statement says.

Under federal rules, if a worker receives a “tentative non-confirmation” on E-Verify, the employer is required to provide the worker with a “tentative non-compliance notice” which offers the worker the choice to contest the mismatch.

If the worker decides to contest the mismatch, the worker must be allowed to continue to work while resolving the non-confirmation issue. In addition, government rules bar an employer from asking for additional documentation from a suspected illegal immigrant.

In addition to paying $1,210 in civil penalties and $525 in back pay, the company is required to train its human resources staff about “employers’ responsibilities to avoid discrimination in the employment eligibility verification process.”

The company will also be subject to reporting and compliance monitoring by the Justice Department for 18 months.

“This case illustrates the importance of following E-Verify rules consistently regardless of citizenship status or perceived status, or risk running afoul of the anti-discrimination provision,” Assistant Attorney General for Civil Rights Thomas Perez said in a written statement.

“Subjecting naturalized citizens to heightened documentary standards that result in the loss of employment constitutes discrimination, and the [Civil Rights] Division is fully committed to enforcing the law that prohibits it,” he said.

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