Creation and Implementation of an Internal I-9 Audit Program

Transcription

1 Creation and Implementation of an Internal I-9 Audit Program NC CUPA-HR 2016 Spring Professional Development Workshop April 8, 2016

2 Contact Information Jill Blitstein, Manager of International Employment (IE) , Stephanie Hines, Specialist in International Employment , Main number: IE is part of Human Resources at NC State, and is responsible for I-9 and E-Verify monitoring and compliance for the entire university 2

3 Learning Objectives Latest guidance from Immigration and Customs Enforcement (ICE) and the Department of Justice (DOJ) on conducting internal I-9 audits Practical tips on various compliance strategies (including mandatory training) Impact of an electronic I-9 system and how it changes the monitoring and reporting process Example of an interactive real world audit that has successfully spread the compliance message in a nonthreatening and engaging way 3

4 Internal I-9 Audits Guidance from the Government

5 I-9 Internal Audit Guidance In 2015, the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices (of the U.S. Dept. of Justice - DOJ) and the U.S. Immigration and Customs Enforcement (ICE) unit of the Dept. of Homeland Security (DHS) released Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits 5

6 I-9 Internal Audit Guidance This is a MUST READ document for any institution planning an internal audit! Six pages of Q&A format information Biggest takeaway: internal audits must not be discriminatory or retaliatory themselves criteria used for own internal audit could itself potentially become subject of federal audit or sanctions 6

7 I-9 Internal Audit Guidance Several highlights (read entire document!) Clearly define purpose, scope and protocols first Notify employees in writing of the above Correcting errors: only employee corrects Section 1, and only employer corrects Section 2 or 3 No white-out, erasing content or back-dating When to complete newest version of the Form I-9 Employer may NOT request specific documents to correct (or complete new) I-9 form 7

8 I-9 Internal Audit Guidance Several highlights (continued) Cautions employers against requiring all employees to complete new forms, if not justified could raise discrimination concerns E-Verify related guidance Must provide reasonable amount of time to allow employees to provide documentation for I-9 Social Security Number Verification Service (SSNVS) is NOT to be used as ANY part of I-9 process See also January 2016 letter from OSC/DOJ 8

9 Discrimination Violations Office of Special Counsel monitors and prosecutes most I-9 discrimination violations, including citizenship and national origin discrimination, document abuse, retaliation Some violations are also under the jurisdiction of the EEOC, based on Title VII of the 1964 Civil Rights Act There are court cases where employers owed back-pay and fines for specifying which documents new hires had to produce for the I-9 process Could also be true in internal audit context based on guidance 9

10 Example of Discrimination Settlement OSC reached settlement agreement with Macy s in June 2013: Macy s agreed to pay civil penalty of $175,000 and back pay of $100,000 to compensate individuals who suffered economic damages because of Macy s employment eligibility reverification practices Macy s was also subject to extensive monitoring by OSC and reporting requirements for 2 years Fine line between ensuring proper work authorization and avoiding discrimination 10

11 ICE Audit and Compliance Trends Creation of Employment Compliance Inspection Center (ECIC) to process I-9 audits of large employers in 2011 Continued increase in audit and enforcement activities In FY 2013 (latest year available), ICE served 3,127 Notices of Inspection (NOI) to employers Results of NOI s: 637 Final Orders worth over $15.8 million in administrative fines ICE made 452 criminal arrests tied to worksite enforcement investigations; of these, 179 were owners, managers, supervisors or human resources employees! 11

12 Practical Tips on Compliance Training and Audit Strategies

13 The NC State Experience Last federal I-9 audit: 2007 No penalties, but were required to create and implement an I-9 training program for campus First we did a sample I-9 audit on new I-9s coming to Central HR in early 2008 Decentralized originally, but then we centralized the I- 9 process for better control around 2006/2007 Then we audited all I-9s in Central HR in

14 The NC State Experience Audit strategy in 2009: Reviewers were trained by IE, and were a select, small group from Central HR only Reviewed every single form we could find (approximately 16,000 over several months) Corrected what we could, and then reached out to employees to correct or redo I-9 forms as necessary Did not have rigid timeline for completion of new or corrected forms, but monitored units for compliance Not a fun process but was necessary 14

15 The NC State experience In 2008 we created mandatory training for all HR people processing I-9s across campus (and out in the counties), based on first sample audit Approximately people completed I-9 forms on behalf of the university before 2012: way too many, with no training Created official University Regulation which required training by IE before anyone was authorized to do I-9s on our behalf Had support of Administration, Office of General Counsel EVERYONE doing I-9s was required to attend: ouch! Training focused on the law, and then the process Created our best practices for Form I-9 completion 15

16 The NC State experience Requested campus units specifically include I-9 responsibility in employee workplans Created to send to supervisors to confirm I-9 training attendance by employees Provided immediate feedback to people completing Section 2 when mistakes were noticed during review IE audited EVERY paper I-9 form upon receipt, from Process improved, but started looking at electronic systems to further increase compliance Major issues: lack of timeliness, foreign national document confusion, incomplete forms 16

17 Lingering concerns about compliance Possible penalties for I-9 noncompliance (mistakes, omissions, patterns of errors): Monetary fines/penalties Negative publicity Possible jail time, if government finds a pattern of discrimination or violations Time and expense of dealing with government audit 17

18 I-9 Civil Penalties Failing to comply with Form I-9 requirements: Failure to properly complete, retain and/or make available I-9 forms for inspection: $110 - $1,100 for each I-9 form violation occurring after September 29, 1999 Proposed new fines: $500 - $2,000 per violation! Document abuse: currently $110 - $1,100 for each person discriminated against after September 29,

19 I-9 Civil Penalties Recent decision from the Office of the Chief Administrative Hearing Officer (OCAHO) DOJ USA v. Anodizing Industries, Inc. May 24, 2013 (Case # 12A00030) OCAHO reduced the fines assessed to company by ICE, but specifically noted that failure to prepare an I-9 in a timely fashion is not only a substantive violation but also a serious one

20 Electronic I-9 System considerations Concerns about penalties and continued compliance issues led to transition to electronic ( smart system ) solution for I-9/E-Verify compliance process Biggest issues: COST, COST and COST! Reviewed several systems (demos, etc.) NC State was able to piggy-back on RFP process of UNC-Chapel Hill to get best price on same system Also used by UNC-Charlotte, Western Carolina University We were able to use one-time funds to purchase system Had to also find ongoing support for $3 fee for every I-9 form 20

21 Electronic I-9 Systems and Compliance

22 I-9 Process at NC State NC State University moved to an electronic I-9 and E- Verify system on August 1, 2012 Only licensed (and trained) Users can access system and complete electronic I-9 forms on behalf of NC State NO paper I-9s at NC State since 8/1/2012! Users were selected by College/Unit HR or Business Officers and were/are required to attend I-9 and E-Verify (re)training and I-9 system training We purchased a limited number of User licenses to be used over the lifetime of the product (with the option to buy more) Once a license is issued, it can never be reused again 22

23 Benefits: Electronic I-9 System Decrease in mistakes with a smart system : literally cannot make certain errors anymore Ability to monitor status of I-9s in electronic flow on a dashboard for easy viewing Can receive feed from HR system, so new hires can be (mostly) timely fed into the I-9 system (but beware of payroll lockout!) Can handle remote hires via temporary access by others System can send reminder s about expirations and required reverifications with some customization CAVEAT: just a tool; still requires human inputs and daily usage and monitoring system cannot compel timely completion! 23

24 Monitoring I-9 issues Can see I-9 and E-Verify process in real time Which employee has completed Section 1 but still needs to complete Section 2; which employee hasn t even completed Section 1; which employee has 90 days to produce SSC after showing receipt; etc. Most systems automatically send I-9 data to E-Verify and provide an interface with that system Can always see I-9, and view/print pdf Every action is tracked, date & time stamped Can change User access, if limitations needed 24

25 Reporting Capabilities For the Users/Units, the dashboard is really the only report they need to achieve and monitor their own compliance Admin Users can create unlimited number of reports on various fields as desired Excellent real-time information - but also creates potential vulnerability in a federal audit NC State specifically uses reporting feature to track timeliness completion rates, User data 25

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27 I-9 Process at NC State 27

28 Insert screen shots of Guardian system here (SH) 28

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33 Interactive Real World I-9 Audit To encourage and foster better I-9 compliance by HR

34 Internal Audit of I-9 System Users NC State wanted to inspire better compliance and demonstrate seriousness of a real audit Decided to audit I-9 Users like ICE would: give 3 days notice, assess potential fines, discuss mitigating circumstances and good faith efforts Had senior HR/Business Officer schedule required meeting for unit I-9 Users without mentioning audit IE sent audit notice 3 days in advance, and provided list of names of I-9s to be audited We chose 6-7 forms with issues to review as a group We provide estimated fine ranges THAT gets attention! 34

35 Internal Audit of I-9 System Users IE follows a script: we discuss what a federal audit would look like, then go through the I-9s with issues and tally the potential fine ranges We remove the User names from Section 2 of I-9s We review the unit s system dashboard together, and discuss the available resources to Users for assistance with I-9s at any time We distribute certificates to Users at the end: I survived the I-9 audit of We send follow-up to review issues, but also highlight positive I-9 aspects and successes 35

36 Internal Audit of I-9 System Users This audit requires no participation from employees who completed Section 1 Any issues have already been corrected at the time of (or immediately after) completion, before this internal audit I-9s are selected for this audit based on type of I-9 mistake, NOT based on nationalities Units are selected for audit based on issues Users are first shown clean I-9 form and we encourage them to find mistake(s) as a group; next slide has the errors circled and we discuss what was incorrect and how to avoid that mistake in the future We have received VERY positive responses afterwards! 36

37 Summary: lessons learned NC State has conducted several I-9s audits (both paper and electronic) in the last 8 years, and in our experience: More errors are made on paper forms Perfect timeliness, while always the goal, is seldom consistently achieved, even with electronic tools Centralization is very helpful, if feasible; limiting the number of people who complete I-9s is even better Constant training and helpful resources are a MUST Electronic system has been huge step forward for us, but the system is only as good as the people using it! 37

38 Reference Page HR International Employment I-9 information: HR International Employment I-9 FAQs: HR International Employment I-9 Guardian webpage: HR International Employment E-Verify FAQs: NC State PRR on Employment Eligibility Verification (Reg ): USCIS I-9 form: USCIS I-9 main webpage: USCIS E-Verify main webpage: I-9 Guardian system log-in webpage: 38

39 Questions? Thank you! 39