E-Verify and Immigration-Related Employment Discrimination Beth Coonan BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA Telephone: Facsimile:

What is E-Verify? A partnership between the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA) that permits employers to electronically verify the employment eligibility of newly hired employees and existing employees assigned to work on certain federal contracts.

What is New? 1)It is now mandatory in some jurisdictions. 2)Form I-9 Audits are on the rise. 3) Risk of Discrimination.

Who is using E-Verify? Federal Contractors (FAR) 18 states require the use of E-Verify. Iowa is NOT one of them. Alabama, Arizona, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee and Utah require, or will require, E-Verify participation of most or all employers.

Who is using E-Verify (Cont.) Florida, Idaho, Indiana, Minnesota, Missouri and Nebraska require public employers and state contractors to use E- Verify. Virginia requires all public employers to use E-Verify. Colorado requires all state contractors to use E-Verify.

The I-9 Inspection/Audit An arduous process requiring employers to, upon 3 days notice from DHS, provide original I-9 documents for all current and former employees whose employment terminated within the last 3 years.

History of Inspections/Audits 2008 – ICE issued a total of 503 notices of inspection for the entire year. July 1, 2009 – ICE issued notices of inspection for 652 businesses; launches new strategy to build criminal cases against businesses.

History of Inspections/Audits (Cont.) 2010 – 2,196 notices of inspection issued – More than 2,393 notices of inspection have been issued this year. The Administration has shifted its focus away from the Employee and is now focusing on the conduct of the Employer.

Inspections and E-Verify E-Verify can assist a Company to determine whether an employee is authorized to work in the U.S. E-Verify can serve as positive evidence if implemented prior to a Form I-9 audit.

Discrimination Employers have a duty not to discriminate against any employee based on that employee’s national origin or citizenship.

Discriminatory uses of E-Verify Use of E-Verify as a screening tool. Use of E-verify to satisfy a curiosity about an employee’s authorization. Use of E-verify on a selective basis.

Discrimination Penalties Fines Damages …

Is E-Verify right for your Company? It depends….. If your company has a centralized HR function with an individual who can be tasked with tracking E- Verify requests in a timely manner, it might be a good option. If your company does not have a centralized HR function in place, compliance with the program might prove difficult. If you are a federal contractor, you may not have a choice.

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