How to be barred from using the E-Verify System

everifyOK, chock this one up to “You learn something new every day.” I came across an agency of the government I have not heard of before. Have you ever heard of the Office of Special Counsel for Immigration-Related Discrimination (OSC) within the Civil Rights Division of the U.S. Department of Justice (DOJ)? No? Good I don’t feel so bad. Here is what they are responsible for in their work.

National origin discrimination

We all know that discrimination on the basis of national origin is not only illegal under the EEOC but it is also illegal under the Immigration Reform and Control Act of 1986 (IRCA) and the regulations of the U.S. Citizenship and Immigration Service (USCIS). In addition to discrimination there is also certain paperwork you have to do (the I-9) and for many companies they also have to use the E-verify system, especially if they are Federal contractors or work in a state, such as Georgia, that has dictated that all employers must use the system.
According to attorney Mary Pivec of FordHarrison,employers suspected of engaging in a pattern or practice of discriminatory employment verification procedures could face months of costly investigation and be forced to pay civil money penalties, back wages and punitive damages.” That is what the Office of Special Counsel (OSC) investigates.

E-verify requirements

Pivec says that “As a condition of E-Verify enrollment, employers must sign a Memorandum of Agreement with the Department of Homeland Security (DHS) and the Social Security Administration (SSA) committing to limit use of the E-Verify system under the terms of the agreement and applicable regulation.” This requirement means that:

  • Employers are prohibited from allowing employees who are untrained and unauthorized from accessing the E-Verify data base and I-9 records;
  • Employers must establish adequate security practices and procedures to ensure data privacy
  • Employers must notify the DHS of any security breach which is defined as any instance of authorized access to E-Verify personal data;
  • Employers are prohibited from using the system to investigate the immigration status of current workers except as allowed under the Federal Acquisition Regulations for certain federal contractors.

Additionally, according to Pivec, employers must agree to abide by the rules for tentative non-confirmation of social security account numbers and DHS work authorization status, including providing timely personal notice to affected employees of their right to contest the mismatch and refraining from taking adverse action against workers who elect to contest tentative SSA and DHS non-confirmation results; closing out E-Verify cases in a timely manner; notifying DHS that employees with final confirmation notices have been terminated; and maintaining required E-Verify information  and paperwork with related I-9 files.”

Potential penalties

The OSC can come knocking on an employer’s door because of a number of different reasons. Complaints can be made by employees, applicants or by anonymous tips. The penalties that could result from such an investigation could include:

  1. Fines
  2. Reinstatement of fired employees
  3. Hiring of candidates denied employment
  4. Termination of the right to use E-verify

It is this last penalty that would be the most damaging for companies that are federal contractors. The inability to use E-verify will result in a loss of federal contracts. In states that require employers to use E-verify can also levy fines and impose penalties.
So it pays to understand and pay attention to the regulations surrounding the use and misuse of E-verify otherwise the OSC may come knocking at your door, much to your dismay.

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