Presented by: Steven Moore and Angelica Ochoa Denver, Colorado May 16, 2012

Presented by:

Steven Moore and Angelica Ochoa

Denver, ColoradoMay 16, 2012

Strategies Every Company Needs to Know:

How to Keep EEOC and ICE Investigations in Check

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May 16, 2012 ▪ Denver, Colorado

The EEOC’s Renewed Systemic Initiative

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EEOC’s Systemic Initiative

Increased Funding EEOC attorneys being trained for systemic

litigation EEOC’s goal is to proactively identify class

cases

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Pattern or Practice Cases

Rule 23’s requirements of numerosity, commonality, typicality, and adequacy of representation do not apply

No class certification is required Proverbial “class action monster” Litigated in two phases

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EEOC’s Systemic Initiatives

Systemic Discrimination– Pattern and Practice theory

E-RACE– Combating race and color discrimination– Intersects with systemic discrimination

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ADA Enforcement Actions

Maximum Medical Leave Policies Example: a workers’ compensation policy

prohibiting leave for more than one year

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Avoid Being a Target

Watch for early indicators of exposure

Closely scrutinize individual charges and resolve early when possible

Be proactive with policies, procedures and training– This means more than just lip service

Look at your own stats

Be careful when providing information/ documents

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Defending Against A Systemic Charge

Has the EEOC followed its own administrative requirements?

Has the EEOC investigated on a class basis? Did the charge specify the company’s territories or

regions at issue? Did the EEOC identify class members in

conciliation? Did the EEOC conciliate in good faith?

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Courts Are Striking Back

EEOC criticized for failing to provide information during conciliation

“Sue First, Ask Questions Later”

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If You Find Yourself A Target In Litigation

Hire the best statistical expert possible

Continue to be proactive with policies, procedures and training

Be prepared for massive electronic discovery requests

Alert Public Relations

Explore early settlement

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Settlement Strategies

Pre-Complaint– Conciliation and/or EEOC Mediation Program

– Confidential

Post-Complaint– Consent Decree and EEOC press release

– Extensive equitable relief

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Keeping ICE Investigations in Check

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Why are we here?

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'09 '10 '11 '12

ICEAudits

ICE audits increasing and affecting all sizes of companies and all industries

Record number of fines against employers, even when no unlawful workers were found

Random, tip-based and government information sharing

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Why are we here?

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Strategy #1: Know the Basics

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May 16, 2012 ▪ Denver, Colorado 16 of 47

I-9 Basics

Complete for every employee hired after November 6, 1986

Provide instructions and list of acceptable documents to employee

Employee must complete Section 1 no later than the end of his first day of work

Employer must complete Section 2 within three (3) business days of employee’s first day of work


Current Interpretation of Timeframe for Completing Section 2

Employer must fully complete Section 2 within three (3)

business days of the first day of work Long standing interpretation – “Wednesday Rule” –

employee begins work on Monday, employer must complete Section 2 by Wednesday

New interpretation – “Thursday Rule” – employee begins work on Monday, employer must complete section 2 by Thursday

- M-274 appears to indicate employer has four (4) full business days to complete Section 2


Form I-9

Versions currently valid for use: Rev. 8/7/09Y and Rev. 2/2/09N

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Completing Sections 1 & 2

Section 1:– ONLY employee may complete Section 1 BUT employer is

responsible for reviewing and ensuring that it is fully and properly completed

– ALL fields must be completed EXCEPT Social Security Number• Exception: E-Verify employers

Section 2:– Employer must permit employee to select the original documents

he/she will provide to show authorization to work in the US• One document from List A or one document from List B and one

from List C• Only unexpired documents permitted

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Strategy #2:

Avoid Common Errors

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Common Errors

Procedural/Technical vs. Substantive– Common Procedural/Technical Errors

• Completion errors but at least employee’s identity and employment authorization was vetted

– Common Substantive Errors• No Form I-9 - not completed or not retained• Failure to complete I-9 within 3 days of hire• No signature or employee attestation in Section 1• No employer signature or recordation of proper documents in

Section 2• Failure to re-verify in Section 3


Complex Issues - Documents

Are Receipts for a List A, List B or List C document acceptable?– If receipt is for a replacement of a lost, stolen or damaged

document, but only for 90 days– Receipt for an initial Employment Authorization Document (EAD) or

an extension of an expiring EAD is NOT acceptable Lawful Permanent Resident Card

– LPRs NOT required to present I-551 Permanent Resident Card (green card) for Section 2

– I-551 cards with or without expiration are List A documents that should not be re-verified

Social Security Card– If contains restrictive language, it is NOT a valid List C document


Complex Issues – Re-verification

Re-verification of employment authorization– Must be completed no later than the date employment

authorization expires

– Use Section 3, unless:• Not available because already used or• Version of I-9 is no longer valid

– If using a new I-9 to complete re-verification:• Ensure new form is current version• Write employee’s name in Section 1• Retain new I-9 with original


Strategy #3:

Copy I-9 Documents

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To Copy or Not to Copy?

Required under Colorado law For I-9 - transition in guidance –

– Attaching copies of I-9 documents can turn substantive violations into technical/procedural violations

Recommendations– Copy front and back and retain with I-9 and attestation

– Not expected to be document experts BUT need to practice due diligence in examining to ensure that documents do not appear fraudulent on their face

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Strategy #4: Properly Retain & Purge

Often

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Retention Rule

Must retain employee’s Form I-9 for as long as the individual works for the employer

Employer must retain I-9 for either

– Three (3) years from date of hire, or

– One (1) year after the date of termination, whichever is later

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Purging Practice

Once employment is terminated, move I-9 into separate binder for terminated employees and calculate the length of time for which the I-9 must be retained– I-9 Retention Calculation Worksheet (M-274, p. 23)

Once retention date lapses, purge old I-9 forms If want a blanket retention policy, it should be at least 3

years from the date of termination, or longer, to ensure that required period has lapsed– Caution: ICE could penalize for old I-9s if they contain

errors

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Strategy #5: Avoid Discrimination in the

I-9 Process

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Common Issues

Over-documentation – requiring more documents than necessary

Re-verification of documents where none is required Requiring employee to present a specific document,

either initially or at re-verification Handling I-9 process inconsistently Refusal to accept a document, or hire an individual,

because a document has a future expiration date

Limiting of jobs to U.S. citizens

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Strategy #6: Know the Audit

Process

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Step One – NOI Issued

ICE issues a Notice of Inspection (NOI)– ICE required to provide employer with at least three (3)

days written notice prior to a Form I-9 inspection

Contents of a NOI:– Name of business to be inspected, date/time of

proposed inspection/audit, waiver of 3-day notice, and time period covered by inspection


I-9 Inspection: Step One

Employer will be requested to provide the following:

– I-9s for all current and terminated employees

– List of all current and terminated employees with hire and termination dates

– Copies of quarterly wage and hour reports and/or payroll data for all employees (current and terminated) covering the inspection period

– Quarterly tax statements (IRS Form 941)

– FEIN, TIN or SSN of employer, address, telephone numbers, copies of Articles of Incorporation (if applicable), copies of business licenses, etc.

– Copies of any and all correspondence with Social Security Administration regarding mismatched or no matched Social Security Numbers

– Whether the company is a current or previous participant in the E-Verify or Social Security Number Verification System

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Step Two – Inspection of Forms

ICE not required to conduct inspection at location of business; employer may be required to produced the forms at the field office

– I-9s must be made available in original paper, electronic form, paper copy of the electronic form, or microfilm/microfiche

– ICE will document receipt of I-9s from employer on Customs and Border Protection Form 6051

– Interview of Human Resources Manager/Responsible Hiring Officer

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Step Three – Review of I-9s

ICE will review I-9s for violations

Report of Investigation (ROI) must document the process and results of the I-9 Inspection: # of forms inspected, # and types of violations present, and percentage of I-9s found in violation

ICE may issue a Notice of Technical or Procedural Failures, aka, “Ten-day Notice” – employer has 10 days to make appropriate changes to errors on I-9s or to provide explanations of the errors

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Step Four – Letters/Notices Issued

Letters/notices issued by ICE:– Notice of Inspection Results (Compliance Letter) – advises

employer is in compliance; no further investigation necessary

– Notice of Suspect Documents Letter – advises employer that that an employee is unauthorized to work; advises employer of possible civil and criminal penalties

– Notice of Discrepancies Letter – advises employer ICE has been unable to determine an employee’s work eligibility

– Notice of Intent to Fine (NIF) – Contains basis of the charges against employer, the statutory provisions alleged to have been violated, and the penalty that will be imposed

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Issuance of NIF

ICE will issue a Final Order within 45 days of the service of the NIF if a written request for a hearing is not received – NO appeal

Employer may enter into negotiations with ICE to reach a settlement

Employer may request a hearing if no settlement is reached

Final Order issued at conclusion of case

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Penalties of Non-Compliance:What’s the Cost?

Types of I-9 Violations

– Technical/procedural and/or substantive errors – “paperwork” violations

• $110 to $1,100 per violation

– “Knowing” violations – constructive and actual knowledge, knowing hire, and/or continuing to employ


– Discrimination violations


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Additional Penalties

Fines may be increased/decreased by up to 25% depending on mitigating/aggravating factors

Criminal prosecution possible

Attorneys fees for discrimination violations

Subsequent penalties enhanced

Barred from government contracts

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Strategy #7: Expect an Audit – Be

Prepared

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Be Proactive

Conduct I-9 self-audit to correct any procedural/technical and substantive errors, if possible

Maintain separate I-9 binders for current and termed employees – do NOT keep in personnel files

Have an audit plan in place

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Best Practices

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I-9 Best Practices

Establish a system to complete forms on time and term employees who cannot produce required documents

Provide training for all employees involved in the process and ONLY allow trained employees to complete form

Set up a system of checks and balances Pre-populate company name and address fields on I-9

in Section 2 Set up a tickler system for expiring documents that

must be re-verified


I-9 Best Practices

Copy documents and attach to I-9 form Keep the I-9 process separate from other

processes which may require documents Review forms for purging eligibility Consider electronic I-9 systems and/or E-Verify Consider use of SSNVS, and having SSN No

Match and honesty policies Ask questions


ICE Audit Do’s

Develop a transparent process for interacting with employees Provide all workers with a reasonable amount of time to

correct discrepancies in their records identified by ICE and treat all workers in the same manner

Inform employees from whom you seek specific information that you are seeking this information in response to an ICE audit

Communicate in writing with employees from whom you seek information, and describe the specific basis for the discrepancy and/or what information you need from them

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ICE Audit Don’ts

DON’T selectively verify employment eligibility of certain employees

DON’T terminate or suspend employees without providing notice and a reasonable opportunity to present valid I-9 documents

DON’T over document or limit the range of documents allowed for purposes of the I-9

DON’T treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the US

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Questions? Need Articles/Updates?

If you have specific questions about the information presented today, please contact us at:

Steven W. Moore (303) [email protected]

Angelica M. Ochoa (303) [email protected]

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Presented by: Steven Moore and Angelica Ochoa Denver, Colorado May 16, 2012

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