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NYC Bosses Can’t Ask Prospective New Hires This Sensitive Question

(Washington Post, with permission from Jena McGregor)

In a vote Wednesday, April 5, 2017, NYC approved legislation that will ban employers from asking job applicants about what they make in their current or past job and could have far-reaching consequences beyond the city as employers try to standardize their practices. It’s an idea that’s starting to spread: In passing the measure, New York City joins Massachusetts, Puerto Rico and the city of Philadelphia — where the local Chamber of Commerce filed a lawsuit against that measure Thursday — in banning the question from job interviews. More than 20 other city and state legislatures have introduced similar provisions.

The measure, aimed at tackling pay inequity, prohibits employers from asking the candidate’s current or former employers about salary, as well as querying public records for it, although applicants can volunteer the information if they choose. The city’s Public Advocate, Letitia James, said it would affect about 3.8 million workers when it takes effect in six months and extends the prohibition to private employers. New York City Mayor Bill de Blasio (D) and Gov. Andrew M. Cuomo (D) had earlier passed orders that would ban salary history details from public-sector jobs.

The thinking behind the new law is that when employers ask about an applicant’s salary history, they can end up perpetuating any discrimination that women or people of color may have faced in the past. When employers ask about current or previous salary, they can hear a number that “anchors” them, and then offer to pay some percentage more on a figure that could already be too low. “Being underpaid once should not condemn one to a lifetime of inequity,” James said in a statement.

Although the measure is for New York-based employees, employees well beyond New York could feel the effects, say equal pay advocates and employment lawyers. Fatima Goss Graves, president-elect of the National Women’s Law Center, said in an email that the measure “stands to transform the way that companies operate around the country,” she said. “So many companies operate in multiple jurisdictions. If a company changes its practices in New York, it is likely to also make changes around the country.”

Melissa Osipoff, a labor and employment attorney with Fisher & Phillips, agreed that companies like to homogenize things as standard as a job application. With so many companies doing business in New York, “I think what we’ll see is companies that do business in New York City just eliminate that from their applications entirely,” she said. “This will have wide-ranging influence.”

Meanwhile, nearly 20 states, the District of Columbia and two cities (San Francisco and Pittsburgh) have introduced legislation that includes a provision against salary history information, according to data from the NWLC. At the federal level, the newly reintroduced Paycheck Fairness Act also calls to ban the question, and Rep. Eleanor Holmes Norton (D-D.C.) plans to reintroduce a bill from 2016 that did, too.

Some business groups have opposed the measure. Kathryn Wylde, president and chief executive of the Partnership for New York City, said in a statement that “closing the gender pay gap is important” and most major employers are already taking steps to correct the problem. “Inserting the city government into the relationship between employer and potential employee is potentially disadvantageous to both,” she said. “Politicians are eager to demonstrate their contribution to popular causes, which is about all this legislation accomplishes.”

It’s also possible the measure in New York could face legal challenges. On Thursday, the Greater Philadelphia Chamber of Commerce filed litigation against the law in that city. “The ordinance is a broad impediment to businesses seeking to grow their workforce in the city of Philadelphia,” the chamber said in a statement, citing a violation of employers’ First Amendment rights.

But other companies have begun privately ending the practice of asking the question on their own. James’s office said that several New York-based companies, including Kickstarter, Peeled Snacks and BBMG were among those who had already prohibited the question.

Others are weighing the concept. Cindy Robbins, who leads human resources for the cloud computing giant Salesforce, said in an interview this week that it’s a shift her staff has discussed training their recruiters to make. “For example, instead of asking what current compensation is, ask what is the expectation they have around compensation,” she said. “That changes the tone around negotiation.”

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As a boss, I’d definitely like to know a potential employment candidate’s previous salaries as it provides me with insight into employee performance.  Forcing employers to operate in the dark can only be bad for business as many small to medium sized businesses can not afford a high employee turnover rate and the less we know about a new hire, the more difficult it is to employ that person to his/her maximum capability.

BNI Operatives: Situationally aware.

As always, stay safe.

Basics of a Background Check

background check

 

The professional investigator should conduct a background check from an experience-based template, outlining his/her methodology.  Aside from the consistency of results, wire-framing an investigation will ensure that the basics of a background check are researched and, serves as a solid springboard once the information pipeline begins to produce.

Below we will outline the various type of background checks and the situations wherein which they should be conducted.

New Hire (Non-Management Level, excepting positions involving access to client and or other employee financial information):

The most relevant and important features of a comprehensive background check are the:

1. Address, SSN and DOB verification and

2. Criminal history (this level search will not include criminal charges – only convictions)

3. E-Verification clearance ensuring that the potential new hire is in fact legally allowed to work in the U.S.

New-Hire (Management, fiduciary trust or client financials access and C positions):

A more comprehensive search than a basic new hire background check, those conducted for potential management, C positions and employees with access to client financial information should include the above and:

1. A full credit check.

2. Assets search,.

3. An in-depth criminal records review (to include criminal charges).

New Partner:

There is a Japanese adage, correctly applicable to undertaking a new partner: “One must marry with both eyes open.”

In taking on a new partner, including all of the above searches, the following investigations should also occur:

1. Full litigation history.

2. Previous positions and conditions of departure verifications.

3. Professional license search (to ensure licensure validity and uncover professional sanctions, if any).

4. Full criminal check to include researching the backgrounds of the new partner’s former associates.

5. Develop the subject’s public and private profile.  (There are many methods employed by professional detectives that will allow the investigator to acquire the comprehensive information necessary to develop a 360 degree assessment of the subject.)  This is a critical part of  checking the background of a potential partner.  In today’s information age, no one can control all visible aspects of one’s life and there will be the inevitable professional and personal disclosures online.  While no single posting (unless of course it’s of a truly, damaging event), will reveal the subject’s true character,  subsequent to assessing the all of the tangible search results, a pattern should become obvious to the investigator which will allow for an accurate analysis of the subject’s behavior.  The past portends the future.

Recommendation: All of the above information now relayed, and even with the verified, accurate and comprehensive information you now have in hand regarding your new business association, never forget to trust your instinct.

BNI Operatives: Situationally aware.

As always, stay safe.

Married? Age? Kids? Can You Ask These Questions of Employment Candidates?

Image result for employee interview asking questions

Can you ask a prospective employee her age?  Is the candidate married?  What about a phone number for an emergency contact?

With employment regulations one of the fastest changing sectors of human resources and company personnel management today, we compiled an employment interview Can/Can’t Ask questions list for you today from hiring information from the U.S. Department of Labor and the Small Business Administration.

Address/ Housing/Length of Residence

CAN ASK:

• Place and length of current and previous address

• For applicant’s phone number or how s/he can be reached

IT IS ILLEGAL TO ASK/REQUEST:

• Specific inquiry into foreign addresses that would indicate national origin

• Names or relationship of persons with whom applicant resides

• Whether applicant rents or owns home

Age

BEFORE HIRING ONLY:

• If a minor, require proof of age in the form of a work permit or a certificate of age

• If age is a legal requirement, can ask “If hired, can you furnish proof of age?” or a statement that hire is subject to verification of age

• Whether or not an applicant is younger than the employer’s regular retirement age

AFTER HIRING ONLY:

• Require proof of age by birth certificate

IT IS ILLEGAL TO ASK/REQUEST:

• About the age or age group or date of birth of the applicant

• Birth certificate or baptismal record before hiring

• Questions that would tend to identify persons between 40 and 60 years of age.

Ancestry/ Birthplace/ National Origin

CAN ASK:

• “After employment, can you submit a birth certificate or other proof of U.S. citizenship or other proof of the right to remain in or work in the U.S.?”

• About foreign language skills (reading, speaking, and/or writing) if relevant to the job

IT IS ILLEGAL TO ASK/REQUEST

• If an applicant is native-born or naturalized

• The birthplace of applicant

• Questions which identify customs or denomination

• About birthplace of his/her parents, grandparents and/or spouse or other relatives

• Require applicant submit a birth certificate or naturalization or baptismal record before employment

• About any other inquiry into national origin (for applicant or his or her spouse or parents; maiden name of wife or mother)

• First language

• Date of arrival in U.S.

• Port of entry Citizenship CAN ASK:

• Whether a U.S. citizen

• If no, whether intends to become one

• If you are not a U.S. citizen, do you have the legal right to remain permanently in the U.S.?

• If not a citizen, are you prevented from lawfully becoming employed because of visa or immigration status?

• If spouse is a citizen

• Statement that, if hired, applicant may be required to submit proof of citizenship.

AFTER HIRING ONLY:

• Require proof of citizenship

IT IS ILLEGAL TO ASK/REQUEST

• “Of what country are you a citizen?”

• If native born or naturalized (for applicant or his or her parents or spouse)

• Proof of citizenship before hiring

• Whether parents and/or spouse is native born or naturalized

• Date of citizenship (for applicant or his or her parents or spouse)

Credit Rating NO questions may be asked regarding credit. 

Criminal Record (Arrests and Convictions)

CAN ASK:

• About actual convictions other than misdemeanors that relate reasonable to fitness to perform a particular job

• About convictions or imprisonment if crimes relate to job duties and conviction or release from imprisonment occurred within the last ten years

IT IS ILLEGAL TO ASK/REQUEST

• To inquire about arrests without convictions

• Check into a person’s arrest, court, or conviction record if not substantially related to functions and responsibilities of the particular job in question.

• About any involvement in demonstrations

Disabilities

CAN ASK:

• Whether or not applicant is able to carry out all necessary job assignments/functions and perform them in a safe manner “How would you perform this particular task?”

• Applicant to indicate how and to what extent they are disabled. Employer must indicate to applicants that (1) compliance with the invitation is voluntary; (2) information is being sought only to remedy discrimination or provide opportunities for the disabled; (3) information will be kept confidential; and (4) refusing to provide information will not result in adverse treatment. accommodation(s) he or she may need until after the interviewer has established that the applicant is qualified for the job and is considering that person for employment. An employer must be prepared to prove that any physical and mental requirements for a job are due to “business” necessity” and the safe performance of the job. Except in cases where undue hardship can be proven, employer must make “reasonable accommodations” for the physical and mental limitations of an employee or applicant.

IT IS ILLEGAL TO ASK/REQUEST:

• How or when disability occurred

Education

CAN ASK:

• What academic, professional or vocational schools attended

• About language skills such as reading and writing foreign languages

• Office skills

IT IS ILLEGAL TO ASK/REQUEST

• Specifically ask the nationality, racial or religious affiliation of schools attended

• To ask how foreign language ability was acquired

Experience

CAN ASK ABOUT:

• Applicant’s work experience, including names and addresses of previous employers, dates of employment, reasons for leaving, and salary history

• Other countries visited

Family/Relatives

CAN ASK:

• If the spouse is employed at the company/firm

• Names of applicant’s relatives already employed by company

• Names and addresses of parents or guardian of minor applicants

AFTER HIRING ONLY:

• To ask name, relationship and address of person to be notified in case of emergency

IT IS ILLEGAL TO ASK/REQUEST

• Name of a spouse

• Whether or not a spouse is employed

• How much a spouse earns

• Whether or not a spouse is subject to transfer

• Questions about any relative of a candidate

• Names of relatives not working for the institution

• Name or address of any relative of adult applicant, other than those employed by company/firm

Gender/Sex Inquiry

AFTER HIRING ONLY:

• Can ask about gender for affirmative action plan statistics

IT IS ILLEGAL TO ASK/REQUEST

• Sex of applicant

• Anything which would indicate gender unless job related.

Health/Physical Condition

CAN ASK:

“Do you have any physical, mental or sensory handicaps which might affect work performance or which should be considered in job placement?”

May NOT ask

• “Do you have any handicaps?” or questions that divulge handicaps which do not relate to the job.

• Any questions regarding having received worker’s compensation.

Marital/ Parental Status  

BEFORE HIRING:

• Whether applicant can meet specified work schedules or has activities, commitments, or responsibilities that may hinder the meeting of work attendance requirements. If such questions are asked, they must be asked of both sexes.

IT IS ILLEGAL TO ASK/REQUEST

• About marital status before hiring (married, single, divorced, engaged, etc.)

• About the number and age of children

AFTER HIRING ONLY:

• Married or single status for insurance and tax purposes Number and ages of dependents and age of spouse for insurance and tax purposes

• Information on child-care arrangements

• About pregnancy and if applicant plans to have (more) children

• Any question that directly or indirectly results in limitation of job opportunity in any way

Military Service

CAN ASK:

• Inquiry into service in U.S. armed forces

• Branch of service and rank attained

• Any education or job related experience as it relates to a particular job

• Require military discharge certificate after hiring

IT IS ILLEGAL TO ASK ABOUT OR REQUEST

• Military records

• Military service of any country other than the U.S

• Type of discharge

Religion/Creed

CAN ADVISE:

• An applicant about normal hours and days of work required by the job to avoid possible conflict with religions or other personal convictions

IT IS ILLEGAL TO ASK/REQUEST

• Applicant’s religions denomination or affiliation, church, parish, pastor, or religious holidays observed

• Applicants may not be told that any particular religious groups are required to work on their religious holidays.

• About applicant’s religion or religious customs and/or holidays

• Recommendations from church officials

As with anything else in the workplace, when hiring, exercise common sense, compassion and restraint in asking for unnecessary personal information.  Stick to the task at hand – hiring skilled, competent and willing workers.

BNI Operatives: Situationally aware.

As always, stay safe.

Federal and State Employer Use of Arrest And Conviction Records.

job application

(From Nolo.)  Given that nearly 65,000,000 Americans have an arrest history, now more than ever we are seeing new laws to address the legal rights of a potential new hire when it comes to his/her criminal history.

There are two current federal protections in place to shield job applicants from discrimination based solely on an arrest and or conviction history. I.e. :

Federal Protections for Applicants With a Criminal Record

– Title VII: Discrimination Based on Criminal Records

Title VII of the Civil Rights Act of 1964 prohibits discrimination in every aspect of employment, including screening practices and hiring. Because arrest and incarceration rates are higher for African Americans and Latinos, an employer that adopts a blanket policy of excluding all applicants with a criminal record might be guilty of race discrimination.

– The Fair Credit Reporting Act: Inaccurate Records

The federal Fair Credit Reporting Act (FCRA) addresses the issue of inaccurate criminal records. Criminal background checks may include errors, such as information on convictions that have been expunged, multiple listings of the same offense, incomplete information (for example, failing to report that the person was exonerated of a crime or that charges were dropped), misclassification of crimes, and even records that belong to someone else entirely.

The FCRA imposes obligations on employers who request criminal background checks and on the firms that provide them. Employers must:

  • Get the applicants written consent ahead of time.
  • Notify the applicant if the employer intends to disqualify him or her based on the contents of the report. The employer must also give the applicant a copy of the report.
  • Give the applicant notice after the employer makes a final decision not to hire him or her based on the information in the report.

Each state also has employment laws on the book in regard to hiring those with a criminal past.

New York Law on Use of Criminal Records

New York gives applicants a number of protections when it comes to employer use of criminal records in making hiring decisions. Employers may not ask about or consider arrests or charges that did not result in conviction, unless they are currently pending, when making hiring decisions. They also may not ask about or consider records that have been sealed or youthful offender adjudications.

Employer with at least ten employees may not refuse to hire an applicant based on a criminal conviction unless hiring the applicant would pose an unreasonable risk to property or to public or individual safety, or the conviction bears a direct relationship to the job. The law defines a “direct relationship” strictly to mean that the nature of the criminal conduct underlying the conviction has a direct bearing on the applicant’s fitness or ability to perform one or more of the duties or responsibilities that are necessary related to the job.

An employer that considers an applicant’s prior conviction must look at these eight factors:

  • the state’s public policy to encourage the hiring of those who have been convicted of crimes
  • the duties and responsibilities that are necessarily related to the job
  • whether the conviction has a bearing on the applicant’s ability to perform those duties and responsibilities
  • how much time has passed since the conviction(s)
  • how old the applicant was at the time of the offense
  • the seriousness of the offense
  • any information the applicant provides about his or her rehabilitation, and
  • the employer’s legitimate interest in protecting property and the safety and welfare of individuals and the public.

An employer who decides not to hire someone based on a criminal conviction must, upon the applicant’s request, provide a written statement of the reasons for the decision. This statement must be provided within 30 days of the request.

Look here for state-by-state hiring regulations and information as they relate to applicants with a criminal history.

BNI Operatives: Situationally aware.

As always, stay safe.

The ICE-man cometh… Gaming the SSA.

 The situation U.S. employers now face regarding hiring is bearing the legal onus to the question, “Is this person allowed to legally work in the United States?”

The United States  Citizenship and Immigration Services (USCIS) has now fully implemented (commenced in 2011) an online services program in which one can immediately check his/her immigration work status, such site under the law enforcement jurisdiction of U.S. Immigration and Customs Enforcement (ICE).   The program Self-Check allows an individual to review his information and research the  information that federal agencies such as the SSA, Homeland Security, USCIS

Self-Check comes on the heels of regulation being pushed by legislators that requires  all employers to verify the immigration status of employees via an online program, Verify.  (We have major reservations [still] about E-Verify in that there are so  many ways to get around its confirmation process [as has been reported lately on the use of the SSNs of dead folks by illegal immigrants] and on a more serious note, makes employers a de facto arm of law enforcement is an abhorrent concept.)

To review,  prior to an employee with a potential “glitch” in his employment status applying for a job, (wherein the employer would have to validate his legal standing to work), he can check his own status online by himself.  Within that self-check, s/he can then determine the appropriate corrections necessary, if any. There are enough loop holes in this 2-tiered program to run a circus through.

Step One:  Check hirability.  The answers to the Self-Check questions are based primarily on the address history of the person applying.   Once someone has obtained a SSN or a TIN (taxpayer identification number), running a reverse address check is very easy and often free online.  (We’re not going to tell people how to do it but given our experience, take our word for it that acquiring address histories is a cake walk, especially for a determined person.)

Step Two: Establish an E-Verify’d account.  In this portion of the Self-Check process, once an applicant has been given clearance by USCIS as being hirable – via Step One above –  that individual then sets up an E-Verify account in which information will be stored for access by potential employers.   So anyone with an SSN or TIN and birth and address history can legitimize his/her identity.   How do future employers know then who is really showing up for work?  S/he won’t.

The major issue with Self-Check and  E-Verify then is of identity verification.  (Note:   E-Verify claims that in the future, it will  include a photo comparison – courtesy of Homeland Security – but they won’t release the collection data criteria.)  Will the Social Security Administration continue to issue the harder-to-track TINs? Will the IRS verify the jobs held and dates of employment assigned to each SSN? As we found out last week when millions of illegal aliens were discovered to be using the SSNs of dead people, not likely.)

Self-Check and E-Verify are good starts in the effort in removing the unwanted competition between legally hirable employees and undocumented immigrants for work but,  where employers part with these government plans is on the issue of liability.  If a person desires  to “get over” on the system, they will.  If an employer has complied with E-Verify and other hiring regulations (which obviously to date have not really turned out all that well), why should the employer be held responsible to a system in which she had no input in designing?  And the employer will face penalties for hiring errors regardless of compliance with E-Verify. The obvious work facility access requirement – a retinal scan , fingerprint, non-invasive DNA monitor, appears logical  but then we have to consider the “privacy” issues these suggestions will undoubtedly raise.

Trust, but E-Verify.  We’ve reached that point.

BNI Operatives: Situationally aware.

As always, stay safe.

When Is It “A Bit” of Sexual Harassment in the Workplace??

Breaking: Verdict In Alexandra Marchuk v. Faruqi & Faruqi

We’ve been eagerly awaiting the verdict in Marchuk v. Faruqi, the high-profile sexual harassment lawsuit filed by Alexandra Marchuk against her former firm and one of its most prominent partners, Juan Monteverde. Trial started on January 12. The jury got the case on Tuesday and deliberated for about eight hours over three days.

And now the jury has spoken. Here’s a report from Law360 (sub. req.):

A New York federal jury on Thursday found Faruqi & Faruqi LLP and partner Juan Monteverde partially liable for creating a hostile work environment in a closely watched sexual assault case that has cast a harsh spotlight on the securities boutique.

An eight-member jury found Faruqi and Monteverde liable on former associate Alexandra Marchuk’s New York City law hostile work environment claims and partially granted her request for damages. She sought $2 million in damages. She was awarded $90,000 plus punitive damages to be determined later.

The economic damages — back pay, front pay, compensatory damages — are probably disappointing for Marchuk. But who knows what the punitive-damages award might bring?

On the bright side for the defendants, Monteverde and Faruqi were cleared of federal and state law claims of creating a hostile work environment. Recall also that Judge Alvin Hellerstein narrowed the case by dismissing various other claims, including Marchuk’s defamation and retaliation claims.

As of now, until we get the punitives, the outcome can’t be called as a huge win (or loss) for either side. This makes some sense given that both sides had their strengths and weaknesses at trial. But if the punitives turn out to be modest, then chalk this up as a defense victory — big headlines, small damages.

UPDATE (4:35 p.m.): Per Max Stendahl of Law360, who has been doing a great job covering the trial, the jury has reached a verdict on punitive damages. We’ll update as soon as it’s announced.

UPDATE (4:45 p.m.): From Max Stendahl: “Jury awards $45,000 against partner Juan Monteverde, $5,000 against Faruqi [as a firm].”

UPDATE (4:55 p.m.): Said one observer to me just now, “So all of that, and she ends up with $140k?

****************
And now, the EEOC regs:

The U.S. Equal Employment Opportunity Commission


Questions and Answers on Employer Liability for Harassment by Supervisors

Title VII of the Civil Rights Act (Title VII) prohibits harassment of an employee based on race, color, sex, religion, or national origin. The Age Discrimination in Employment Act (ADEA) prohibits harassment of employees who are 40 or older on the basis of age, the Americans with Disabilities Act (ADA) prohibits harassment based on disability, and the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits harassment of an employee based on genetic information. All of the anti-discrimination statutes enforced by the EEOC prohibit retaliation for complaining of discrimination or participating in complaint proceedings.
The Supreme Court issued two major decisions in June of 1998 that explained when employers will be held legally responsible for unlawful harassment by supervisors. The EEOC‘s Guidance on Employer Liability for Harassment by Supervisors examines those decisions and provides practical guidance regarding the duty of employers to prevent and correct harassment and the duty of employees to avoid harassment by using their employers’ complaint procedures.

1. When does harassment violate federal law?

  • Harassment violates federal law if it involves discriminatory treatment based on race, color, sex (with or without sexual conduct), religion, national origin, age, disability, genetic information, or because the employee opposed job discrimination or participated in an investigation or complaint proceeding under the EEO statutes. Federal law does not prohibit simple teasing, offhand comments, or isolated incidents that are not extremely serious. The conduct must be sufficiently frequent or severe to create a hostile work environment or result in a “tangible employment action,” such as hiring, firing, promotion, or demotion.

2. Does the guidance apply only to sexual harassment?

  • No, it applies to all types of unlawful harassment.

3. When is an employer legally responsible for harassment by a supervisor?

  • An employer is always responsible for harassment by a supervisor that culminated in a tangible employment action. If the harassment did not lead to a tangible employment action, the employer is liable unless it proves that: 1) it exercised reasonable care to prevent and promptly correct any harassment; and 2) the employee unreasonably failed to complain to management or to avoid harm otherwise

4. Who qualifies as a “supervisor” for purposes of employer liability?

  • An individual qualifies as an employee’s “supervisor” if the individual has the authority to recommend tangible employment decisions affecting the employee or if the individual has the authority to direct the employee’s daily work activities.

5. What is a “tangible employment action”?

  • A “tangible employment action” means a significant change in employment status. Examples include hiring, firing, promotion, demotion, undesirable reassignment, a decision causing a significant change in benefits, compensation decisions, and work assignment.

6. How might harassment culminate in a tangible employment action?

  • This might occur if a supervisor fires or demotes a subordinate because she rejects his sexual demands, or promotes her because she submits to his sexual demands.

Our opinion? (Not that anyone asked but if that’s the criteria, the Bulletin would be a weekly blank page.) Defense win.  Let’s face it – $140,000 for all of the effort that undoubtedly went into the case to arrive at this trial level?  No clear “message” was sent to employers in similar situations other than “Gentlemen, mind your manners”.  

I find it interesting that the partners fined were found “partially guilty” of creating a hostile work environment.   Were there other supervisors who were more culpable for allowing a sexually harassing environment to exist but had not been named? <tongue boring a hole through cheek> We’ll await the actual trial transcripts and report back.

For employers/supervisors:  Keep it in your pants/under your skirt and your hands (among other body parts) to yourself and mind your words.  Seems simple enough, doesn’t it?  Yes, a charged environment is highly competitive and there can be raging egos and through-the-roof biochemistry surges but check your bank account first and be mindful of the firm’s reputation.

BNI Operatives:  Street smart; info savvy.

As always, stay safe.

Municipal IDs and Illegal Alien Amnesty Making E-Verify Compliance Difficult.

everify

(The sentiment reflected in the above jpeg are not reflective are our views but rather a notice circulating online – and one that does not address the real issues facing employment of undocumented immigrants.)

Currently, employers are required to verify employee work eligibility in regard to the potential new hire’s legal residence in the United States.  Seems like a fairly simple regulation but let’s first identify the inter-related issues of this type verification with the distribution of municipal IDs for undocumented aliens and proposed amnesty for the 11 – 12 million illegal aliens currently residing in the United States.  Below are brief definitions of these three programs/factors and then we pose the question of the real viability for true compliance with E-Verify.

 

E-Verify:

U.S. law requires companies to employ only individuals who may legally work in the United States – either U.S. citizens, or foreign citizens who have the necessary authorization.

E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States.

Source: E-Verify

Municipal IDs:

“New York City is creating its own official identification card, which is excellent news for immigrants without papers and other New Yorkers who hope to make their city a more secure and navigable place. Mayor Bill de Blasio signed the bill on Thursday (July 17, 2014). The cards are supposed to be available early next year.”

Source: NY Times

Amnesty for Illegal Aliens:

The proposed immigration amnesty would benefit the 12 to 20 million undocumented aliens (illegal immigrants) currently living in the United States. An amnesty for illegal aliens forgives their acts of illegal immigration and implicitly forgives other related illegal acts such as driving and working with false documents. The result of an amnesty is that large numbers of foreigners who illegally gained entry into the United States would achieve legal residency status (Green Card).

Source: USAmnesty. org

Having defined these three factors that are intertwined in the hiring of new employees, let’s explore the inherent compliance issues for employers. 

 – E-Verify requires employers to verify the eligibility of new employees within 72 hours of their first paid work date.

 – The requirements to obtain a municipal ID are still in flux with the ACLU having filed suit in NYS, claiming that illegal aliens will be “outed” by the program if required to present birth records.

 

 – A large amnesty grant presents its own obvious problem for previously undocumented aliens when attempting to gain employment.  There is no mechanism within the E-Verify program to allow for the vetting of those awarded amnesty. 

In our research for this article, we were unable to find any sources of information that addressed these issues.  HR departments, small business owners who employ their own hiring practices and any other entity that is mandatorily obligated to comply with E-Verify have thus far been left completely in the dark as to methods of acceptable employment verification but I’m fairly certain penalties for noncompliance – through no fault of the potential employer’s efforts – will not be waived.

We’ll be monitoring this situation closely and being you updates as available.

BNI Operatives: Street smart; info savvy.

As always, stay safe. 

 

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