In U.S. v. Occupational Resource Management, Inc., OCAHO addresses key issues in the adjudication of I-9 violations allegations, 10 OCAHO no. 1166 (2013). We discuss below two of these important matters and how they emphasize the importance of employers’ use of E-Verify.
Federal regulations prohibit hiring a foreign national worker knowing that he or she is unauthorized to work in the United States. Regulations define “knowing” as including both actual and constructive knowledge. However, OCAHO admits in Occupational Resource Management (ORM), that its “case law respecting constructive knowledge has not been fully developed.” On one hand, OCAHO case law does show that an employer cannot cultivate “conscious disregard” or “deliberate ignorance” with regards to employees’ employment eligibility. Generally, when an employer receives specific information that casts doubt on an employee’s work authorization and continues to employ the individual without taking adequate steps to reverify his or her employment eligibility, OCAHO may find the employer had constructive knowledge.
On the other hand, ORM acknowledges that courts have warned that the doctrine of constructive knowledge must be “sparingly applied” in order to preserve Congressional intent. In the regulations, employers are only required to ensure that work authorization documents presented appear to be valid on their face; and if so, the employer is not obligated to investigate further.
Ultimately, it appears that an employer must accept documents that appear to be valid on its face and has no obligation to investigate further. However, an employer does have the obligation to properly review those documents as well as Section 1 (which is filled out and signed by the employee) to ensure that the information provided makes sense to a reasonable person. For example, in ORM, the employer ignored the fact that an employee entered in Section 1 information from an expired work authorization document. OCAHO determined that when “an employer is put on notice of circumstances that would cause a reasonable person to make timely and specific inquiry [e.g., information from an expired document in Section 1] but fails to take any steps to investigate or inquire further, that employer acts in reckless disregard of the facts and consequences. The employer is chargeable with such knowledge as reasonable inquiry would have revealed.”
We at Cornerstone recommend that all employers contact their legal counsel to help determine whether to enroll in E-Verify. Use of E-Verify can avoid this constructive knowledge quagmire. Upon completing the Form I-9, the E-Verified employer then submits the information from the employee’s work authorization documents for verification with federal databases. Instituting this practice in an employer’s I-9 procedure sidesteps the constructive knowledge issue because E-Verify will automatically provide actual knowledge of each employee’s employment eligibility and specific instructions on how to proceed if the finding is negative.
2) Government’s burden
ORM clarifies that the government’s burden on a count for unauthorized employment is preponderance of the evidence. This means that ICE does not have to present “conclusive evidence” of the unauthorized status of an employee in question. OCAHO states that when “the government makes a prima facie case showing that a document is false based on a computer search of its records system, and the employer fails to provide any evidence to the contrary, substantial evidence supports a finding of a lack of authorization.”
Again, use of E-Verify can help any employer avoid this situation because E-Verify checks the validity of the documents against the same government systems.
(This post is part of a larger series on 2013 OCAHO decisions. Please also see the previous post on U.S. v. Super 8.)