In response to the recent preliminary approval of a $5.9 million settlement in a class action suit against a major transit company, Pre-employ.com is offering a free guide for businesses, “Top 5 Reasons to Avoid FCRA Non-Compliance” available here: http://www.pre-employ.com/5Tips

This free guide provides valuable information about how to stay compliant in these commonly missed areas:

• The Release Form
• Reacting to Criminal Arrests and/or Convictions
• Adverse Action Notification
• Establishing a company policy regarding pre-employment background screening
• Yearly analysis to ensure compliance

The plaintiffs in the lawsuit brought charges against the employer for not providing appropriate disclosures to job applicants prior to a pre-employment screening and background check, and for not following the required “adverse action process” as set forth in the FCRA. The Federal FCRA documents that lay the groundwork for the class action suit may be found here: http://www.pre-employ.com/FCRASettlement

Screening job applicants for criminal convictions or other red flags has become commonplace among employers, but the rules governing pre-employment screening are complicated, and willful non-compliance can be financially devastating to a business. Statutory damages of up to $1,000 per violation, attorney’s fee, and unlimited punitive damages may result. Negligent non-compliance penalties are the same with the exception of statutory damages, which are not included.

Many states have screening laws that can be confusing, and how these regulations relate to federal laws such as those employed in the above case is never clear. All businesses utilizing pre-employment screening are strongly encouraged to review their background screening programs through careful, yearly analysis available from the industry experts at http://www.pre-employ.com/quote

*We welcome relevant comments and questions from consumers, experts, and human resources professionals. Please do not submit comments with advertisements as they will not be posted publicly. Thanks for visiting our blog!

Frustrated with the failure of the federal government to pass meaningful immigration reform, states have moved in to fill the void. While Arizona has recently received much of the press regarding this issue, Pennsylvania and New Jersey have also moved forward to introduce E-Verify legislation designed to combat the employment of unauthorized workers.

At the same time, President Obama's administration has stepped up worksite enforcement initiatives and has called on Congress to enact comprehensive immigration legislation that would contain a federal E-Verify requirement. The message is clear: Employers must achieve compliance.

i-9compliance.com a division of pre-employ.com has noticed a tremendous uptick in i-9compliance inquiries since early summer

E-Verify is an internet-based Employment Eligibility Verification System run by United States Citizenship and Immigration Services, or USCIS, that allows employers to electronically verify the employment eligibility of newly hired employees. E-Verify allows an employer to electronically compare employee-provided information from Form I-9, Employment Eligibility Verification, against records in the Social Security Administration and Department of Homeland Security databases.

E-Verify does not exempt employers from I-9 completion. Under the Immigration Reform and Control Act, or IRCA, all employers are required to verify that individuals hired after Nov. 6, 1986, are authorized to work in the United States by completing Form I-9. On the federal level, E-Verify is voluntary except for certain federal contractors, who are now required to use E-Verify if they have a qualifying contract. As explained below, many states now require E-Verify and Pennsylvania and New Jersey are following this trend.

PENNSYLVANIA LEGISLATION

On June 10, the Pennsylvania House of Representatives overwhelmingly passed two pieces of legislation, HB 1502 and HB 1503, that would require certain Pennsylvania employers to use E-Verify. Both bills are now in the Pennsylvania Senate.

HB 1502 requires all state contractors and subcontractors to verify the status of new employees through E-Verify. The bill also requires contractors and subcontractors to verify the Social Security number of all existing employees for wage reporting purposes through the Social Security Number Verification Service (NVS) "in accordance with federal law regarding NVS." Contractors must submit "verification statements" to the contracting state agency verifying compliance not only from their own company but also by each subcontractor. To ensure compliance, the state will conduct complaint-based and random audits of contractors and subcontractors. Sanctions for failure to comply include contract termination and debarment from state contracts for up to three years.

HB 1503, dubbed the "Construction Industry Employment Verification Act," requires all construction industry employers to confirm employment eligibility of new employees through E-Verify and to verify the Social Security number of all existing employees for wage reporting purposes through the NVS. The bill applies to all construction employers, regardless of whether there is any state contract or public funds. Construction is broadly defined to include "erection, reconstruction, demolition, alteration, modification, custom fabrication, building, assembling, site preparation and repair work or maintenance work done on any real property or premises." Like its sister bill, HB 1503 also requires the regular submission of verification statements and it provides for complain-based and random audits. Sanctions include the forfeiture of all licenses and certifications that allow the construction employer to conduct business in Pennsylvania for a period of up to three years.

Both Pennsylvania bills also provide that an employer who relies in good faith on the E-Verify and NVS procedures shall be immune from sanctions under the proposed legislation. The bills also prohibit retaliation against any employee who makes a complaint or participates in an investigation and provide for reinstatement of any such employee as well as restitution equal to three times the amount of the employee's wages and benefits from the date of violation as well as attorney fees and costs.

i-9compliance.com, a division of pre-employ.com has a automated solution designed to make this upcoming burdon manageable. Pre-employ.com offers this service free of charge for qualified employers

State Rep. John Galloway, D-Bucks, has urged the Senate to pass the legislation stating: "These bills target contractors who cheat, who use and abuse a cheap illegal work force for profit and push hard-working Pennsylvania workers off the payrolls and on to the unemployment rolls." U.S. Rep. Patrick Murphy, D-Pa., called for Gov. Edward G. Rendell to support the legislation stating: "We need every tool we have, including E-Verify."

NEW JERSEY LEGISLATION

New Jersey is also pushing for such legislation. In May 2010, identical bills were introduced in the New Jersey Senate and Assembly requiring employers to use E-Verify. They are now proceeding in committee. Bills S1842 and A2600 prohibit the employment of unauthorized workers and require all employers who employ 100 or more employees to verify the employment eligibility of all new employees through E-Verify by Dec. 31. The effective date for smaller employers is Dec. 31, 2011.

Like the Pennsylvania bills, the New Jersey bills provide for statewide random auditing as well as complaint-driven investigations. The bills provide that the employer must terminate any unauthorized workers and the attorney general or county prosecutor shall notify U.S. Immigration and Customs Enforcement as well as local law enforcement of any unauthorized alien. Sanctions include civil monetary penalties ranging from $100 to $1,000 for each violation as well as the loss of business licenses. Depending upon the severity of the offense, the loss of business licenses may be anywhere from a matter of days to permanent revocation for an employer who violates the act a second time.

Currently, there are many other states that require employers to participate in E-Verify. These laws can be broken down into three basic categories: (1) laws that require all employers in the state to participate in E-Verify, (2) laws that require public or state employers to participate and (3) laws that require those contracting with the state or political subdivisions within the state to participate in E-Verify.

At this point, Colorado, Georgia, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Rhode Island, South Carolina Utah require E-Verify for employers who have public contracts with state agencies or political subdivisions. Many of these states also require public employers to use E-Verify and some states like North Carolina and Virginia (effective December 2012) require public employers to use E-Verify but do not require contractors to use E-Verify. The Arizona, Mississippi and Utah statutes are the most far-reaching of current legislation as they require all employers within the state to use E-Verify. South Carolina requires employers to either register and participate in the E-Verify or employ only workers who have a valid South Carolina driver's license or identification card or possess a valid driver's license from another state where the license requirements are at least as strict as South Carolina's.

THE OBAMA ADMINISTRATION CALLS ON CONGRESS TO ACT

In the wake of this growing patchwork of state legislation, in a speech on July 1 of this year, Obama has called for Congress to act and pass federal immigration reform. In arguing that the time is now for immigration reform, Obama stated: "The system is broken. And everybody knows it. Unfortunately, reform has been held hostage to political posturing and special-interest wrangling. ... But I believe that we can put politics aside and finally have an immigration systems that's accountable." Virtually every proposal or outline for immigration reform from Congress that has been circulated in recent months includes a requirement for all employers to use E-Verify. Indeed, even apart from any comprehensive immigration reform, many in Congress have pushed for E-Verify to become mandatory for all employers.

INCREASED WORKSITE ENFORCEMENT

In his speech, Obama also emphasized that even though Congress has not yet successfully moved forward with legislation, his administration is not only working to actively enforce the borders but it is actively pursuing worksite enforcement actions. Indeed, in April 2009, the Department of Homeland Security and Immigration and Customs Enforcement, the enforcement branch of DHS, issued a new Worksite Enforcement Overview and Worksite Enforcement Strategy Fact Sheet.

These documents announce: "ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration." Not only will ICE use traditional criminal enforcement methods, but a related ICE memorandum released in October 2009 emphasizes that administrative tools will be used "to advance criminal cases, and in the absence of criminal charges, to support the imposition of civil fines and other available penalties."

Indeed, the memorandum makes clear that the "most important administrative tool is the Notice of Inspection and the resulting Form I-9 audit" as it will not only support the imposition of civil fines and other available penalties, but it "will often serve as an important first step in the criminal investigation and prosecution of employers."

Consistent with this use of I-9 audits as the key administrative tool, ICE announced a nationwide initiative to audit employers' Form I-9 employment eligibility verification records. As part of this initiative, in the first week of July 2009 alone, ICE issued Notices of Inspection to 652 employers across the country. In comparison, only 503 Notices of Inspection were issued in all of fiscal year 2008. The pace has only increased -- over the past year, ICE has conducted I-9 Inspections at more than 2,900 companies and the agency has levied over $3 million in civil fines this year. In addition to civil fines, ICE has also regularly pursued debarment from federal contracts.

This widespread enforcement initiative is much different than any in the past. In the past, initiatives often focused on the most likely offenders -- employers in industries such as meat-packing, construction, landscaping and manufacturing -- commonly believed to regularly hire unauthorized workers. Although certain of these businesses were included within the thousands of I-9 audits, the reach has been much broader to include a wide variety of businesses throughout the entire country. The message is clear: No employer is safe from an I-9 audit and investigation.

E-VERIFY DOES NOT PRECLUDE ENFORCEMENT ACTIONS

It is important to note that although the government has increasingly touted E-Verify as a way for an employer to increase compliance, E-Verify does not insulate an employer from I-9 enforcement actions. In order to use E-Verify, an employer must register online with DHS and accept the electronic memorandum of understanding, an agreement between the employer, the SSA and DHS that details the responsibilities of each with regard to E-Verify.

Although an employer who verifies work authorization under E-Verify is presumed to not have knowingly hired an unauthorized alien queried through the system, the E-Verify memorandum of understanding itself clearly provides participation does not provide a safe harbor from worksite enforcement. Indeed, E-Verify participating employers have been subject to enforcement actions.

In signing the E-Verify MOU, the employer also agrees to allow the federal government and designees to conduct site visits, have full access to employment records and to interview employees. By entering into such an MOU, the employer is waiving its Fourth Amendment rights and allowing the government free access to employment records, including I-9s completed prior to participation in E-Verify even though those records are not subject to any presumptions or protections under E-Verify.

In addition, recent information released regarding data mining of E-Verify suggests that, far from providing protection, the use of E-Verify could result in investigations, enforcement actions and even discrimination charges and complaints. In December 2008, USCIS and ICE negotiated a memorandum of agreement, or MOA. Pursuant to this MOA, the USCIS Verification Division is charged with (1) the identification and pursuit of suspected employer and employee misuse, abuse and fraudulent use of E-Verify and (2) the referral of suspected employer and employee misuse, abuse and fraudulent use of E-Verify to ICE for investigative consideration. In March 2010, USCIS negotiated a similar MOA with the Department of Justice and its Office of Special Counsel for Unfair Immigration-Related Employment Practices to share E-Verify information.

Specifically, under the agreement, the USCIS will share data obtained from queries run through E-Verify with OSC, which will allow OSC to identify potential violations of the anti-discrimination provisions of the Immigration and Nationality Act. USCIS will also provide employer information to OSC, as necessary, when employers have engaged in potential misuse or abuse of E-Verify.

COMPREHENSIVE COMPLIANCE PROGRAMS ARE ESSENTIAL

In order to avoid potential liability, employers are well advised to develop and implement detailed I-9 policies and practices. ICE recommends that employers, at a minimum, establish an internal training program, with annual updates, on how to manage completion of Form I-9 and how to detect fraudulent use of documents in the I-9 process; permit the I-9 and any E-Verify process to be conducted only by individuals who have received training; and include a review of the completed I-9 and documents by a second person as part of each employee's verification to minimize the potential for a single individual to subvert the process. Most effective I-9 compliance policies will track these recommendations.

Internal audits -- conducted before ICE comes knocking on the door -- are essential to limit liability and assess compliance. Indeed, once a NOI is issued, the employer has only three days to respond and produce all I-9 records.

Accordingly, should a NOI be issued, businesses are well advised to contact their immigration counsel as quickly as possible. It is also advisable, to the extent possible given the limited time frame, that the company conduct an audit of all I-9s and make any allowable corrections.

Employers, however, must be careful to follow proper procedures at all times in any such audits, or face possible additional scrutiny. Employers, for example, should initial and date any correction clearly showing that the I-9 was corrected pursuant to audit. Company representatives responding to the NOIs should always retain copies of any documentation submitted to ICE. Employers who can demonstrate good-faith efforts to comply with immigration laws are more likely to avoid criminal penalties and be assessed lower level civil fines if violations are uncovered.

Should employers enroll in E-Verify they must similarly develop comprehensive training and compliance programs. As the E-Verify MOU subjects an employer's I-9 records to scrutiny, internal I-9 audits are essential. Employers must also develop policies and training programs as E-Verify records are subject to the MOAs that provide for information sharing with ICE and the OSC. Employers must take all steps to ensure that employees responsible for I-9 completion, and for E-Verify queries, are aware not only of general E-Verify rules and requirements but also the anti-discrimination provisions of the Immigration and Nationality Act.

Special thanks to Elise A. Fialkowskiwho  is a partner in the Philadelphia office of Klasko Rulon Stock & Seltzer, a firm devoted exclusively to the practice of immigration and nationality law with offices in Philadelphia and New York. She specializes in employment-based immigration and worksite enforcement..

*We welcome relevant comments and questions from consumers, experts, and human resources professionals. Please do not submit comments with advertisements as they will not be posted publicly. Thanks for visiting our blog!

Over 100 child care centers in Florida are involved. Rather than order the tests, workers forged signatures on documents stating the checks had been performed.An investigation with the Department of Children and Families shows more than 100 child care centers did not have proper background checks performed on new employees. The DCF worker, rather than order the tests, forged signatures on documents stating the checks had been performed.After the investigation started it showed both employees were forging documents going back over a year.Falsifying any DCF records and documents is a felony in Florida. DCF officials said they have not pressed charges against the two yet.

DCF said their investigation showed none of the children were in any type of danger because of the forged documents. 

3 WORKERS LEAVE

Preliminary investigations by DCF into its child care licensing office in Daytona Beach show DCF workers, in some cases, falsified records and forged signatures, and did not ensure that centers and homes had current background screenings in the files. Some inspections also were not done, even though reports in the file and on the agency's website stated they had been completed. Falsifying DCF records is a felony under state law. One DCF worker, Melanie Herring, was fired in June. The other worker, Karen Smythe, resigned in June, as did the supervisor, Freneau Surguine. The office, not counting the supervisor, had three licensing workers who handled 70 to 80 cases each. One worker remains, a new supervisor has been hired, and the remaining two positions are to be filled soon. The three former workers did not return calls by The News-Journal, but Smythe told DCF during the preliminary investigation that she was overwhelmed with her own work while helping another worker and asked for help many times, but didn't get any.

KIDS ESCAPE CENTER

One of the child care facilities in question was Beautiful Beginnings in Holly Hill, where a toddler and a 4-year-old girl walked away from the center April 13 and were gone for at least 30 minutes until they were found by a neighbor and police were called. An e-mail sent to DCF staff April 21 that sparked the investigation into the Daytona Beach office refers to an anonymous report about inspections not being done properly, including at Beautiful Beginnings. Officials at DCF said they have since found that background screenings were up-to-date for Beautiful Beginnings and the owner told DCF one reinspection had been missed in 2009. The center was fined and put on probation for the April 13 incident. DCF's Inspector General's Office has picked up the overall investigation into the local child care licensing office and the work by Herring, Smythe and Surguine. But preliminary reports by DCF licensing staff released to the Daytona Beach News-Journal in response to a public records request show:· Eighty-eight centers or homes did not have current background checks in their file, including, in some cases, Florida Department of Law Enforcement screenings, FBI fingerprint checks, local screenings and checks to the abusehot line. Some of the centers have since provided proof of current screenings, but they were not previously in DCF files, according to Pam Buckham, child care licensing safety program manager for the region that includes Volusia and Flagler counties;· Fifty-two centers or homes did not have a copy of the current inspection in the file, although they were in the computer system. It is unclear exactly how many were falsified, Buckham said.· Fifteen checks and a money order, some dating back to 2007, were found in drawers or files that had either not been sent to FDLE for background screenings or were not cashed by DCF for license renewals. In some cases, child care centers thought the employees had an approved background screening because the checks were sent to DCF.·  In eight day care centers or homes, signatures on inspection reports were forged. Two others, DCF staff say, appear altered.

'WORK IN PROGRESS'

DCF officials have stated that despite the problems, which they say are "horrible," at this point they have not found any indication that child safety was compromised. But John Harrell, DCF spokesman, said not all background screenings have been completed and that it's "a work in progress." "I think it's tragic," regional safety manager Buckham said. "I think we have a job that the community expects us to do to ensure child safety and to make sure child care facilities are following the requirements. It's devastating." Buckham said the local office had some vacancies before discovery of the problems and she asked the supervisor if he needed help, but Surguine told them it was under control. Herring, the worker who was fired, also told DCF during the preliminary investigation that Smythe was overwhelmed and had asked for help from Surguine, but didn't get any. Herring denied not going out on inspections, despite child care centers telling DCF she didn't, and that they did not sign the reports. Herring was questioned about an internship she had separate from her job, and told DCF she took files home and did inspections late in the day and worked on weekends. Smythe's file shows she admitted to officials that screenings were not always completed and she did not have time to file paperwork. Surguine had been with DCF since 1999 in different capacities; Herring worked in the child care licensing office since 2006 and Smythe since 2004. DCF staff from Tallahassee and Jacksonville are helping conduct inspections, license renewals and background screenings to ensure state requirements are being met. "We're trying to get it all fixed and get things the way they should have been," Buckham said. Child advocate Richard Wexler, executive director of the National Coalition for Child Protection Reform, said that if any records were falsified, the state doesn't know whether conditions at certain day care centers are adequate. Wexler said most workers at DCF and at child care centers wouldn't put children's safety at risk, but he said if those in question did falsify or didn't ensure files and inspections were complete it is a "severe betrayal of the trust of innocent children."   

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 Defending Workers From a Bad Rap: Challenging Criminal Background ChecksPosted by Neal Tolani Finance Jun 21, 2010

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 Defending Workers From a Bad Rap: Challenging Criminal Background ChecksPosted by Neal Tolani Finance Jun 21, 2010

*We welcome relevant comments and questions from consumers, experts, and human resources professionals. Please do not submit comments with advertisements as they will not be posted publicly. Thanks for visiting our blog!