Creation and Implementation of an Internal I-9 Audit Program

1 Creation and Implementation of an Internal I-9 Audit ProgramNC CUPA-HR 2016 Spring Professional Development WorkshopApril 8, 2016 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 university2 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)

2 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 non-threatening and engaging way3 Internal I-9 AuditsGuidance from the GovernmentI-9 Internal Audit Guidance In 2015, the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices (of the Dept. of Justice -DOJ) and the 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 5I-9 Internal Audit Guidance This is a MUST READ document for any institution planning an Internal Audit !

3 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 sanctions6I-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 form7I-9 Internal Audit Guidance Several highlights (continued)

4 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/DOJ8 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.

5 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 guidance9 Example of Discrimination Settlement OSC reached settlement agreement with Macy s in June 2013: Macy s agreed to pay civil penalty of $175,000 andback pay of $100,000 to compensate individuals who suffered economic damages because of Macy s employment eligibility reverificationpractices 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 discrimination10 ICE Audit and Compliance Trends Creation of Employment Compliance Inspection Center (ECIC)

6 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 $ 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 Practical Tips on Compliance Training and Audit StrategiesThe 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 allI-9s in Central HR in 200913 The NC State Experience Audit strategyin 2009.

7 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 necessary14 The NC State experience In 2008 we created mandatory trainingfor all HR people processing I-9s across campus (and out in the counties), based on first sample Audit Approximately 400-500 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!

8 Training focused on the law, and then the process Created our best practices for Form I-9 completion15 The NC State experience Requested campus units specifically include I-9 responsibility in employee workplans Created email 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 2008-2012 Process improved, looking at electronic systems to further increase compliance Major issues: lack of timeliness, foreign national document confusion, incomplete forms16 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 audit17I-9 Civil Penalties Failing to comply with Form I-9 requirements.

9 Failure to properly complete, retain and/or make available I-9 forms for inspection: $110 -$1,100 for eachI-9 form violationoccurring 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, 199918I-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 not only a substantive violation but also a serious.

10 19 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 form20 Electronic I-9 Systems and ComplianceI-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)