Yesterday, the Justice Department announced it entered into a settlement agreement with Diversified Maintenance Systems, LLC, a provider of janitorial and facilities maintenance services based in Tampa, Florida. The Florida employer allegedly retaliated against one of its employees based on a final non-confirmation result generated from its use of E-Verify.
This case marks a departure from the standard conduct OSC typically investigates; where investigations of immigration-related discrimination usually involve conduct related to the I-9 Form. This case is one of the first publicized cases where OSC investigates discrimination based on an employer’s conduct related to the use of E-Verify. Employers who are currently enrolled in E-Verify should pay particular attention.
The Facts as Alleged in this Case
The Florida employer in this case was enrolled in E-Verify and initiated a case for one of its employees. The employer then verbally informed the employee in question about the tentative non-confirmation that was generated as a result of data mismatch. In an attempt to correct her data, the employee visited the local Social Security Administration office but lacked the proper E-Verify paperwork, which she alleged was not given to her by her supervisor. The paperwork would have enabled Social Security Administration to resolve the mismatch.
Because the employee was unable to resolve the mismatch, the E-Verify system ultimately produced an erroneous “final non-confirmation.” The employee was fired as a result whereupon she called the E-Verify hotline to seek assistance. OSC informed the employee that she was authorized to work, which was later relayed back to the employer. However, the employer refused to reinstate her.
The Charge
The employee subsequently filed a complaint with the OSC on account that the employee had asserted her right to work under the INA provisions for anti-discrimination and on account that the employer had retaliated against her when she exercised this legal right.
Before any further legal action was taken the employer agreed to settle the case with the Justice Department. As part of that settlement, the employer agreed to the following terms:
-Payment of $6,800 in bay pay and interest to the employee;
-Payment of $2,000 to the Justice Department in civil penalties; and,
-Receipt of additional training from Justice Department on regarding proper E-Verify procedures.
The Takeaway
This case makes perfectly clear OSC is ready, able and willing to also resolve conflicts arising out of the improper use of the E-Verify system. OSC provides a variety of educational reading, video, and webinar resources to employers available for free on online.
However, some employers may find that their unique situations may warrant more tailored strategies and approaches. In those situations, we encourage those employers to consider consulting with experienced legal counsel as well as exploring a robust E-Verify software solution that integrates fully with HRIS systems and the I-9 process, to ensure maximum compliance.
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