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North Carolina Joins Growing List of States Requiring Use of E-Verify
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On June 23, North Carolina became one of 17 states requiring employers to use E-Verify. An online system run by the federal government, E-Verify is said to help employers confirm whether newly-hired employees are authorized to work in the United States. While critics charge that the database is inaccurate and encourages discrimination, more and more states are endorsing its use.
Under the new law, North Carolina cities, counties and businesses that employ 25 or more workers will be required to use E-Verify according to the following schedule:
1) October 2011: cities and counties
2) October 2012: more than 500 employees
3) January 2013: 100 or more but fewer than 500 employees
4) July 2013: 25 or more but fewer than 100 employees
Businesses with fewer than 25 workers or those that employ seasonal employees who work fewer than 90 days in a year are exempt.
The North Carolina law comes on the heels of the U.S. Supreme Court's decision to uphold Arizona's 2007 law, which allows for the suspension or revocation of the employer's business license if it fails to use E-Verify. The Supreme Court stated that "although Congress had made the program voluntary at the national level, it had expressed no intent to prevent States from mandating participation." This ruling allows states to enact some form of E-verify requirements through legislation or executive order.
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H-1B Violations Could Cost Employers Millions in Back Pay and Penalties
Many employers use the H-1B visa to recruit and retain talented foreign national workers to fill professional or "specialty occupations," such as research scientists, accountants, engineers and managers. Before the employer files an H-1B petition, it must first obtain certification of a Labor Condition Application (LCA) from the U.S. Department of Labor. The LCA regulations require employers to pay at least the required wage and provide working conditions to H-1B workers that will not adversely affect other similarly-employed U.S. workers. Employers may face hefty back pay awards and penalties if they ignore the LCA regulations and violate the H-1B program.
Earlier this month, the U.S. Department of Labor's Wage and Hour Division reached an agreement with Maryland's Prince George's County Public Schools system to pay $4,222,146 in back wages to 1,044 workers as a result of H-1B violations. DOL investigators found that PGCPS illegally reduced the H-1B workers' earnings by requiring them to pay H-1B related fees that the school system was required to pay.
"The Labor Department has the responsibility for ensuring that employers who use the H-1B program follow the law and do not place U.S. workers at a disadvantage to H-1B workers," said Secretary of Labor Hilda L. Solis. "We are pleased this investigation has been resolved with workers paid all the back wages to which they are entitled."
Because some of the violations were willful, PGCPS also agreed to pay $100,000 in civil money penalties and to be debarred for two years from filing new petitions, requests for extensions or requests for permanent residency for foreign workers under any employment-based visa program. The law governing the H-1B program imposes a debarment period of at least two years for willful wage violations. Violations are willful when an employer knew or acted in reckless disregard for whether its actions were prohibited.
The H-1B visa program requires employers to pay certain fees, including an anti-fraud fee and a filing fee, when they file the petition. Instead of paying these fees and other costs associated with recruiting H-1B workers and filing the petitions, PGCPS required the foreign workers to pay them. As a result, the workers' wages were reduced below the required wage, which is the higher of the prevailing wage or the wage paid to similarly situated employees.
According to the DOL, attorney's fees and filing fees related to H-1B visas are "an employer's business expense." If an employee pays these fees, it is considered to be a "deduction" from the employee's pay. If this "deduction" ends up reducing the employee's pay below the required wage, it is considered an "unauthorized deduction." Because H-1B violations could lead to thousands or millions of dollars in back pay awards and penalties, employers should consult their attorneys to ensure compliance with the H-1B program requirements.
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DOJ Sues Farmland Foods Inc. for Employment Discrimination Against Non-Citizens
The U.S. Department of Justice recently filed a lawsuit against Farmland Foods Inc., claiming that it discriminated against non-U.S. citizens by requiring them to produce unnecessary documents to show they are authorized to work in the U.S. Farmland Foods is a major producer of pork products n the U.S. and is headquartered in Kansas City, Missouri.
The DOJ found that Farmland required all newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth plant in Illinois to present specific and, in some cases, extra work authorization documents beyond those required by federal law. The Immigration and Nationality Act (INA) requires employers to treat all authorized workers equally during the hiring process, regardless of their citizenship status. Farmland imposed different and stricter requirements for non-U.S. citizens and foreign-born U.S. citizens as compared to those for native-born U.S. citizens.
"Employers may not treat authorized workers differently during the hiring process based on their citizenship status," said Thomas E. Perez, the Assistant Attorney General in charge of the Civil Rights Division. "Federal law prohibits discrimination in the employment eligibility verification process, and the Justice Department is committed to enforcing the law."
The lawsuit is pending before the Office of the Chief Administrative Hearing Officer (OCAHO) within the Executive Office for Immigration Review, another component of the DOJ.
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