Hiring & Onboarding Legal Skills You Must Know

HIRING AND
ONBOARDING LEGAL
SKILLS YOU MUST
KNOW
Beau Howard
101 Marietta Street, N.W.
Suite 3600
Atlanta, Georgia 30303
beau@freedhoward.com
(470) 839-9300

WHAT’S THE
POINT?
1. Recruit, hire, and onboard the
best candidate for each job;
2. Do it efficiently; and
3. Don’t get sued.

SOME OF THE LEGAL PITFALLS
• Title VII of the Civil Rights Act of 1964, which prohibits
discrimination on the bases of race, sex, color, national origin,
and religion.
• Age Discrimination in Employment Act (“ADEA”), which
prohibits discrimination against applicants over the age of 40.
• Americans with Disabilities Act (“ADA”), which prohibits
discrimination based on disability, and requires the reasonable
accommodation of disabled but otherwise qualified
applicants.
• Immigration Reform and Control Act (“IRCA”), which prohibits
discrimination based on citizenship and national origin.
• Genetic Information Nondiscrimination Act (“GINA”), which
prohibits discrimination based on genetic information.
• Bankruptcy Act, which makes it illegal for employers to refuse
to hire applicants solely because they filed for bankruptcy
protection.
• National Labor Relations Act (“NLRA”), which prohibits
discrimination against applicants and employees based on
union membership, union sympathies, or their desire to
unionize or collectively bargain.
• Uniformed Services Employment and Reemployment Rights
Act (“USERRA”), which prohibits discrimination against
applicants based on their membership or service in the
uniformed services.
• Child Support Enforcement Amendments Act of 1984, which
prevents discrimination based on the obligation to make child
support payments.
• Pregnancy Discrimination Act (an amendment to Title VII),
which defines discrimination based on pregnancy, childbirth,
or related medical conditions as unlawful sex discrimination
under Title VII.
• Many, many more state and local regulations.

ONE QUESTION TO
GUIDE YOU
“Is this information
necessary to judge the
applicant’s competence
to perform this job?”
• Prepare an accurate job
description that states the
essential functions of the
position.
• Only ask questions that
allow the candidate to
explain how she would
perform the essential
functions.

JOB APPLICATION
• Only ask for relevant information. Make
sure questions are justified by a
legitimate business need.
• Signed by the applicant.
• Clearly state that the falsification of any
information is grounds for termination
of employment.
• Personal identifying information (Legal
name, address, email address, telephone
number, et cetera).
• Educational background (dates, degrees
earned, names of institutions).
• Prior employers and dates for each.
• Positions and job duties for each prior
employer.
• Name and contact information for the
immediate supervisors.
• Reason for separation from
employment?
• Solicit permission to contact prior
supervisors for references.
• Pertinent credentials and skills.

SCRIPTED INTERVIEWS
(YOUR WAY THROUGH)
“Other evidence also weighs against a
finding of discrimination in HCC’s
non-selection of Popoli. The
Committee’s selection process was
standardized, suggesting HCC’s bases
for choosing a candidate were not
discriminatory. For example, the
interview questions were scripted,
and the Committee members did not
deviate from the script during the
interviews.”
Popoli v. Bd. of Trustees of Harford
Cmty. Coll., No. 16-cv-00452-JFM,
2017 WL 4457153, at *7 (D. Md. Oct.
4, 2017).

REVIEW INTERVIEW
NOTES FOR EVIDENCE
OF DISCRIMINATORY
BIAS
“Plaintiff has provided sufficient
evidence from which a reasonable jury
could find that the interview panel
scored Plaintiff differently than male
candidates. For example, one question
asked candidates about their 5 and 10-
year goals. Despite an answer similar to
the answers of the male candidates,
Plaintiff received a score of 2, but the
male candidates received scores of 4
(out of 5). Plaintiff also offers evidence
that the interview panel pre-scored
candidates before the interview and
gave lower scores to female
candidates.”
Free v. Fed. Express Corp., No. 2:15-cv-
02404-SHM-TMP, 2018 WL 1189692, at
*6 (W.D. Tenn. Mar. 7, 2018).

DO’S & DON’TS
Everything you always wanted to know about job
candidates but were afraid to ask… for good reason.

SOCIAL
MEDIA
Freed Howard LLC
1. Do not ask for user names or
passwords. Illegal in 27 states and
rising. (Not Georgia, yet.)
2. Applicants are easy enough to find
online without their help.
3. Do scan social media history, but…
4. Assign an employee other than the
decision maker to review social media
history.

DISABILITY
(BE WARY OF “REGARDED
AS” CLAIMS)
To demonstrate a disability
under the ADA, plaintiff must
show either that she: (1) has a
physical impairment that
substantially limits one or more
her major life activities; or (2)
has a record of such an
impairment; or (3) is "regarded
as having such an impairment."

DO NOT ASK
• Do you need a handicapped parking
space?
• Have you ever filed a workers’
compensation claim?
• Have you ever been hospitalized? Why?
• How much sick leave did you take last
year?
• Are you taking any prescribed
medications?
• Have you ever been treated for
substance abuse?
• Review the job description with the
applicant and ask:
• Can you perform these duties?
• Can you describe how you would perform
them?
• Would you need anything from the
company to help you perform them? If so,
what?
INSTEAD, ASK
DISABILITY INFORMATION

PRE-EMPLOYMENT PHYSICAL EXAMS
• After you make a conditional offer of employment, and depending upon business
necessity…
• You can send new employees for physical examinations, drug & alcohol screens, mental
health assessments, physical fitness tests.
• You may also need to ask about past injuries, worker’s compensation, and needed
accommodations.
• The Department of Labor publishes a pamphlet for employees describing how to request
a reasonable accommodation, and employers should review it as well for a basic
understanding of the process.
https://www.dol.gov/ofccp/posters/files/DownloadableLetterSize_Print_JRFQA508c.pdf
• If you test one applicant, you must test them all.
• Confidential health information about employees should be stored in a confidential
file separate from their personnel file.

MEDICAL MARIJUANA
o You have to be careful on
medical marijuana, because
the law is constantly
changing.
o Colorado, Minnesota, New
York, and Pennsylvania, have
enacted laws prohibiting
discrimination against
applicants based on medical
marijuana use.
o Not relevant to Title VII or
the ADA because marijuana
remains an illegal Schedule I
narcotic under federal law.
o Georgia is allowing more and
more conditions to be
treated with THC Oil, but the
law is not clear about how
patients can acquire it.

RACE
• Employees and applicants may self-identify
on Form EEO-1. No guessing.
• EEO-1 is voluntary. No discrimination for
refusal to complete.
• You must file Form EEO-1 if:
• You employ more than 100 employees;
• You are subject to Title VII (i.e., more than 15
employees) and your company is owned or
affiliated with another company and they
have more than 100 employees together;
• You are a federal contractor with more than
50 employees.
• How do I file?
• Register and file online, here:
https://www.eeoc.gov/employers/eeo1survey/
• Deadline for 2017 is June 1, 2018
• FAQ:
https://www.eeoc.gov/employers/eeo1survey/
faq.cfm
• To protect against allegations of
discrimination, the completed Form EEO-1
must be kept separate from the candidate’s
application, and the company should not
share the form with the interviewers or hiring
decision makers.

STOP ASKING ABOUT SALARY HISTORY
“The Equal Pay Act stands for a principle as simple as it is just: men and
women should receive equal pay for equal work regardless of sex. The
question before us is also simple: can an employer justify a wage
differential between male and female employees by relying on prior
salary? Based on the text, history, and purpose of the Equal Pay Act, the
answer is clear: No. … To hold otherwise—to allow employers to capitalize
on the persistence of the wage gap and perpetuate that gap ad
infinitum—would be contrary to the text and history of the Equal Pay Act,
and would vitiate the very purpose for which the Act stands.”
Rizo v. Yovino, 887 F.3d 453, 456-57 (9th Cir. 2018).

ASK ABOUT CRIMINAL HISTORY AFTER
OFFERING EMPLOYMENT
• The best practice is to avoid interview questions about an applicant’s
previous arrests or convictions.
• If criminal history is relevant, the company can make a conditional offer
of employment which explains, in writing, that the offer is subject to the
candidate passing a background check.
• The EEOC considers questions about criminal history to be suspect
(although not per se illegal) under Title VII because asking about
criminal history tends to have a disparate impact on African American
and Hispanic job applicants.

MILITARY SERVICE
• Keep it positive.
• E.g., “tell me something you learned from your time in the service that
would make you a good candidate for this job.”
• USERRA prohibits discrimination against applicants based on their
membership or service in the armed services.
• The Vietnam Era Veterans' Readjustment Assistance Act of 1974
(“VEVRAA”) requires federal contractors and subcontractors to take
affirmative action to employ qualified Vietnam-era veterans, disabled
veterans, recently separated veterans, and veterans who served on active
duty during certain other wars, expeditions, or campaigns.

PREGNANCY
• The Pregnancy
Discrimination Act
amended Title VII to
prohibit discrimination
based on pregnancy,
childbirth, or related
medical conditions.
• Avoid interview questions
like “are you pregnant?”
and “do you plan to get
pregnant?”

DON’T ASK
• Are you pregnant? Do you have plans to
get pregnant?
• Are you married? Do you intend to get
married?
• How many children do you have? How
many children do you intend to have?
• What are your childcare arrangements?
• Is your spouse employed? What is your
spouse’s name?
• Are you available to travel frequently?
• Can you work overtime with no notice?
• Can you work evenings and weekends?
• When we check references/do a
background check, are there other
names we should look under?
INSTEAD, ASK
QUESTIONS ABOUT MARITAL STATUS &
CHILDREN ARE PROXIES FOR GENDER
DISCRIMINATION

GO AHEAD AND ASK ABOUT
UNEMPLOYMENT STATUS
• It is generally OK to ask applicants about their current employment
status, and for their prior employment history and references.
• State legislation on this front seems to have died off since 2014.
• Few exceptions.
• The District of Columbia has enacted legislation making it illegal to
discriminate based on an applicant’s unemployment status.
• The New York City Human Rights Law makes it illegal to discriminate based on
unemployment, and it allows private lawsuits to enforce this right.
• Oregon, New Jersey, and they City of Chicago have enacted legislation making
it illegal to state in a job posting that only currently employed applicants will
be considered.

AVOID ASKING
• Are you a United States citizen?
• Where are you from?
• What is your accent?
• What kind of last name is that?
• Are you eligible for employment in
the United States?*
* You will be required to as for
documentation of eligibility to work in
the United States after making an offer
of employment.
INSTEAD, ASK
NATIONAL ORIGIN

UNLESS YOU ARE A CHURCH OR
SOMETHING SIMILAR, AVOID QUESTIONS
ABOUT RELIGION
• Title VII makes it illegal to discriminate based on religion.
• Employers cannot ask questions about religion during the interview or
application process unless a bona fide occupational qualification exists,
such as hiring a minister for a ministry position in a church or religious
organization.

POLITICAL AFFILIATION
• According to the EEOC, “[m]any states and municipalities … have
enacted protections against discrimination and harassment based on …
political affiliation,” but there is no federal law that prohibits private
employers from discriminating on this basis.
• If you want to fire an employee or reject a candidate because he was
caught on camera at a neo-Nazi rally, this is still fair game.
• We encourage employers to remove “political affiliation” from their
equal employment opportunity statements. There is no legal need to
create this requirement for your company if it does not already exist in
the law.

DO NOT ASK ABOUT
FAMILY MEDICAL HISTORY
• Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”)
protects applicants from discrimination based on their DNA.
• In 2016, the United States District Court in Colorado explained, “[t]hat [the
plaintiff’s] mother, grandmother, great-grandmother, cousin, and aunt all
were diagnosed with breast cancer is the type of genetic information
implicated by GINA, as ‘the manifestation of a disease or disorder in family
members.’ 42 U.S.C. § 2000ff(4)(A).”
• See Punt v. Kelly Servs., No. 14-CV-02560-CMA-MJW, 2016 WL 67654, at *13
(D. Colo. Jan. 6, 2016), aff'd, 862 F.3d 1040 (10th Cir. 2017).
• Avoid this issue by not asking questions about genetics or family medical
history.

THERE’S NO NEED TO ASK
QUESTIONS ABOUT AGE
• Companies should also avoid obvious proxy questions such as “[w]hen
did you graduate,” and “what is your retirement plan?”
• Instead, ask for a resume, employment history, or education transcript.
• If the applicant appears young, it is legal and valid to ask if they can
meet the minimum age requirements for a position.
• Asking about familiarity with recent technology is not an illegal proxy for
age discrimination. Kennebrew v. Cobb Cty. Sch. Dist., No.
115CV02495RWSCMS, 2017 WL 4334244, at *11–12 (N.D. Ga. May 22,
2017), report and recommendation adopted, No. 1:15-CV-2495-RWS,
2017 WL 4456889 (N.D. Ga. June 28, 2017).

YOU CAN ASK ABOUT NONCOMPETE
AGREEMENTS, BUT BE CAREFUL…
• It is perfectly legal to ask an applicant if they are subject to a non-
compete agreement.
• However, companies may violate federal antitrust laws by agreeing not
to poach or hire one another’s employees.
• In a recent class action settlement, Adobe, Apple, Google and Intel
agreed to pay $415,000,000 to a class of specialized tech workers who
claimed that the defendants had “entered into a series of agreements
with each other not to recruit each other’s employees in violation of
federal and state antitrust laws.”
• Avoid saying obviously boneheaded things like, “we do not hire their
employees, and they do not hire ours.”

UNION AFFILIATION
• Do not ask about union membership
or sympathies.
• If the applicant volunteers this
information, simply move on with the
interview as normal and do not react
negatively.
• As long as the company is not
motivated by anti-union bias, it is
allowed to reject a pro-union
candidate.
• The NLRB acknowledges that
companies may have legitimate
reasons to prefer hiring from within,
rehiring former employees, or hiring
candidates who were recommended
by someone within the organization.
These types of employees are less
often union salts. See Custom Topsoil,
Inc., 328 N.L.R.B. 446 (1999).

SEXUAL ORIENTATION & GENDER
• Title VII prevents “sex” discrimination, which traditionally means gender, not sexual
orientation.
• The Eleventh Circuit Court of Appeals (which includes Georgia) has ruled that Title VII
does not prohibit discrimination against employees based on their sexual orientation.
Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. Mar. 10, 2017)
• The Seventh and Second Circuit Courts of Appeal (which includes Chicago and New
York) have ruled that an employee who claims discrimination based on their sexual
orientation has stated a viable claim under Title VII. See Hively v. Ivy Tech Community
College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017); Zarda v. Altitude Express, Inc.,
No. 15‐3775 (2d Cir. Feb. 26, 2018)
• Under President Obama, the EEOC took the position that Title VII does prohibit sexual
orientation discrimination, and the Commission continues to take the position today.
• Federal Contractors still have some affirmative obligation not to discriminate on the
basis of sexual orientation.

“BAN THE BOX”
Thirty (30) states have adopted
statewide “ban the box” laws for
public employers

“BAN THE BOX”
Ten (10) states have extended
“ban the box” laws to private
employers

STATE AND LOCAL
BAN-THE-BOX RULES
• As of February 2018, over 150 cities and counties (including the District
of Columbia) have adopted “ban the box” laws for government
contractors.
• Seventeen localities have laws extending “ban the box” to private
employers hiring within their jurisdictions (Austin, TX; Baltimore, MD;
Buffalo, NY; Chicago, IL; Columbia, MO; the District of Columbia; Kansas
City, MO; Los Angeles, CA; Montgomery County, MD; New York, NY;
Philadelphia, PA; Portland, OR; Prince George’s County, MD; Rochester,
NY; San Francisco, CA; Seattle, WA; and Spokane, WA).

WHAT DO I DO IF THE BOX IS BANNED?
• Remove the “criminal history” checkbox from
your application.
• Remove open ended questions asking
applicants to self-report arrests, charges, and
convictions from your application.
• Do not use stigmatizing language concerning
criminal records on your application
paperwork.
• Consider whether a background check is
necessary for the position in question. If not,
you may save time, effort, and money by
declining to conduct one.
• If a background check is necessary, limit your
consideration to recent convictions for
relevant crimes. For example, a four-year-old
conviction for misdemeanor possession of
marijuana may not be the most relevant
information when hiring a short-order cook
position. However, it may be highly relevant
for a pharmacy technician.
• If a background check discloses a criminal
record, provide the applicant with an
opportunity to dispute a record, or explain it
prior to rejecting the application.
• Train your hiring managers to understand
that an arrest does not mean that the person
was guilty of the alleged crime.

THE EEOC WILL BRING TITLE
VII DISCRIMINATION CLAIMS
BASED ON BACKGROUND
CHECKS
“In 1991, only 1.8% of the adult population
had served time in prison. After ten years, in
2001, the percentage rose to 2.7% (1 in 37
adults). By the end of 2007, 3.2% of all adults
in the United States (1 in every 31) were
under some form of correctional control
involving probation, parole, prison, or jail. The
Department of Justice’s Bureau of Justice
Statistics (DOJ/BJS) has concluded that, if
incarceration rates do not decrease,
approximately 6.6% of all persons born in the
United States in 2001 will serve time in state
or federal prison during their lifetimes.
“Arrest and incarceration rates are particularly
high for African American and Hispanic men.
African Americans and Hispanics are arrested
at a rate that is 2 to 3 times their proportion
of the general population. Assuming that
current incarceration rates remain unchanged,
about 1 in 17 White men are expected to
serve time in prison during their lifetime; by
contrast, this rate climbs to 1 in 6 for Hispanic
men; and to 1 in 3 for African American men.”
EEOC, Consideration of Arrest and
Conviction Records in Employment
Decisions Under Title VII of the Civil Rights
Act of 1964, available at
https://www.eeoc.gov/laws/guidance/arres
t_conviction.cfm (last visited May 28,
2018).

DISPARATE TREATMENT
• Example: John (White) and Robert
(African American), are both recent
graduates of State University. They have
similar educational backgrounds, skills,
and work experience. They each pled
guilty to charges of possessing and
distributing marijuana as high school
students, and neither has any
subsequent contact with the criminal
justice system. Robert was rejected
because he was viewed as a criminal,
and John was hired despite his “youthful
indiscretion.”
• Example: Our company enforces a
zero-tolerance policy for criminals, and
we automatically reject any applicant
with a criminal record. This tends to
exclude more black and Hispanic men
from employment as a percentage of
the overall population.
DISPARATE IMPACT
TWO TYPES OF TITLE VII DISCRIMINATION
CLAIMS BASED ON BACKGROUND CHECKS

SOME CRIMINAL RECORDS ARE
JUST TOO OLD TO MATTER
In 2007, the Third Circuit decided El v. Southeastern Pennsylvania Transportation
Authority:
Douglas El challenged SEPTA’s policy of excluding everyone ever convicted of a violent
crime from the job of paratransit driver. El, a 55 year-old African American paratransit
driver-trainee, was terminated from employment when SEPTA learned of his conviction
for second-degree murder 40 years earlier; the conviction involved a gang fight when he
was 15 years old and was his only disqualifying offense under SEPTA’s policy. The Third
Circuit expressed “reservations” about a policy such as SEPTA’s (exclusion for all violent
crimes, no matter how long ago they were committed) “in the abstract.”
Applying Supreme Court precedent, the El court observed that some level of risk is
inevitable in all hiring, and that, “[i]n a broad sense, hiring policies . . . ultimately concern
the management of risk.” Recognizing that assessing such risk is at the heart of criminal
record exclusions, the Third Circuit concluded that Title VII requires employers to justify
criminal record exclusions by demonstrating that they “accurately distinguish between
applicants [who] pose an unacceptable level of risk and those [who] do not.”

HOW TO AVOID TITLE VII DISCRIMINATION
CLAIMS BASED ON BACKGROUND CHECKS
 Treat white and minority employees consistently;
 Do not automatically exclude an applicant based on his or her criminal record—
instead, provide an opportunity to explain mitigating factors; and
 Consider the type of crime at issue and the amount of time that has passed
since it was committed, and ask whether the conviction provides any real
indication as to whether the applicant could perform the position reliably.

FOUR EASY STEPS TO AVOID
FCRA LIABILITY

IMPROPER BACKGROUND CHECK
PROCEDURES LEAD TO LARGE LAWSUITS
• In November 2017, Avis Budget Car
Rental, LLC agreed to pay $2.7
million to settle an FCRA class action.
• In June 2017, a federal court in
California approved a $2.5 million
settlement to be paid by a food
courier service, Postmates, Inc.
• In June 2016, Uber reported
settlement of an FCRA class action
lawsuit for $7.5 million.
• In October 2014, Publix Super
Markets, Inc. settled an FCRA class
action in federal court in Tennessee
for $6.8 million, including $2.3
million in attorney’s fees.

1. BEFORE OBTAINING A BACKGROUND
CHECK OR CREDIT REPORT
• Provide the applicant or employee with a “Notice That a Consumer
Report May be Obtained for Employment Purposes”
• Provide the applicant or employee with a separate form titled “Consent
to Obtain Consumer Report for Employment Purposes”
• Both of these forms should be vetted by legal counsel. Technical
mistakes on the forms can lead to significant liability.

2. BEFORE
TAKING ADVERSE
ACTION
• Provide a “Pre-Adverse Action
Letter,” which notifies the
individual of your intent to
take an adverse action based
on consumer information;
• Provide a copy of the Federal
Trade Commission’s form
titled, “A Summary of Your
Rights Under the Fair Credit
Reporting Act”; and
• Provide a copy of the credit or
background report upon
which you intend to base your
adverse action.

3. COMMUNICATE
THE ADVERSE
ACTION
• Contact the applicant or employee by
telephone to communicate adverse
action; and
• Follow up with written
correspondence stating the adverse
action (email is sufficient).
• Provide the declined applicant or
employee with a “Post-Adverse Action
Letter.”
• If the applicant or employee requests
a copy of the consumer report after
receiving the post-adverse action
letter, you must provide it within 3
business days as well as another copy
of the FTC’s handout, “A Summary of
Your Rights Under the Fair Credit
Reporting Act.”
4. AFTER ADVERSE
ACTION

EMPLOYMENT OFFERS AND
REJECTIONS
• Communicating a Job Offer and Terms
• Communicating a Rejection

HOW TO COMMUNICATE AN
OFFER
• Call and congratulate the candidate,
then send follow-up correspondence
• Avoid saying anything that could
contradict the at-will nature of the
position
• Information needs to be
communicated clearly
• Use form correspondence.
• No explanations.
• No comments about the other
candidates.
• No offers to keep resumes on file, or
to consider the candidate for future
positions.
• Send the rejection letter promptly.
HOW TO COMMUNICATE A
REJECTION

WHAT GOES IN A JOB OFFER LETTER?
When you send the offer letter, it should
communicate the following information
clearly:
• Job title;
• Start date;
• Salary or hourly wage and any
information necessary to calculate
commission or bonuses;
• Benefits that are being offered;
• Job classification or pay grade, if your
company uses these systems;
• The maximum pay grade attainable for
the position, if your company uses this
system;
• The fact that employment will be “at
will,” which should be described to
mean that either the employer or the
employee is free to terminate the
employment relationship at any time,
for any reason, with or without cause;

WHAT GOES IN A JOB OFFER LETTER?
• State whether the position is full-time or
part-time;
• State whether the position is exempt or non-
exempt under the FLSA;
• If the position is FLSA non-exempt, state that
the employee will be paid overtime at the
rate of 1.5 times their regular hourly rate of
pay for any hours worked in excess of 40 per
week. Include any additional state
requirements.
• Advise the new employee to bring
appropriate documentation to complete their
new-hire paperwork, including proof of
eligibility to work in the United States for
purposes of federal Form I-9.
• State whether the job offer is conditioned
upon any of the following:
• Satisfactory background check;
• Drug test;
• Passing a physical examination;
• Reference checks;
• Execution of restrictive covenant agreement;
• Obtaining a certain level of security clearance;
• Obtaining any particular professional
certifications or licenses.

WHAT GOES IN A REJECTION LETTER?
Your rejection letter does not need to be more than four sentences. It
would be perfectly appropriate to send something as simple as:
“Dear [CANDIDATE], Thank you for your application and interest in our
company. We have decided not to hire you for this position. However, we
wish you the best of luck in your job search. Best regards, [HIRING
DECISION MAKER].”

TRAINING SUPERVISORS AND
MANAGERS

MANA
GERS Managers should be trained annually to ensure that they understand their
responsibilities under state and federal law, including:
 Non-Discrimination
 Anti-Harassment
 Medical Leave, Workers Compensation, Disabilities &
Accommodations
 Responding to Discrimination Complaints
 Avoiding Retaliation
Keep a sign-in sheet for manager training that can be provided to the DOL,
NLRB, or EEOC in the event of a claim. It will help your company
demonstrate that it takes affirmative steps to comply with the law.

I-9 AND IMMIGRATION
COMPLIANCE

COMPLIANCE
• Hire and retain only authorized workers
• Do not discriminate against individuals
on the basis of actual or perceived
national origin, citizenship or
immigration status
• Complete and retain a Form I-9 for each
employee hired after November 6, 1986*
• Self-audit.
• Consider becoming “IMAGE Certified”
https://www.ice.gov/image
* You may delegate the authority to complete Form I-9
to a responsible agent, however, you will retain liability
for any errors.

EMPLOYMENT VERIFICATION
Who may legally work in the U.S.?
• Citizens of the United States
• Noncitizen nationals of the
United States
• Lawful Permanent Residents
• Aliens authorized to work
• Avoid unfair immigration-related
employment practice
• Don’t ask:
• “What’s your citizenship status?”
• May ask:
• “Are you legally authorized to work in
the United States?”
• “Will you now or in the future require
sponsorship for employment visa
status?”

WHAT IS FORM I-9?
• The Immigration Reform and Control Act of 1986 (“IRCA”) imposes
sanctions on employers who knowingly hire workers other than United
States citizens and aliens who are legally authorized to work here.
• Form I-9 is a form published by United States Citizenship and
Immigration Services’ (“USCIS”): https://www.uscis.gov/i-9
• It must be completed each time an employer hires or re-hires an
employee.
• The purpose is to verify the eligibility of the employee to work in the
United States.

FINES FOR NON-COMPLIANCE?
• Employer
• $220 to $2,191 fine per paperwork violation for past and current employees
• $375 to $3,200 fine per unauthorized workers
• Debarment from government contracts
• A court ordering payment of individual discriminated against/ requiring the
employer to hire the individual discriminated against
• Individuals
• who submit false or forged documents or knowingly and falsely complete the
Form I-9 may be fined or imprisoned for up to 5 years.

COMPLETING FORM 1-9
• Employers need to obtain a complete copy of most recent federal Form I-
9 from USCIS. A copy is available here: https://www.uscis.gov/i-9
• The current version of Form I-9 is valid from July 17, 2017, to August 31,
2019. For any specific questions concerning how to complete the Form I-
9, USCIS publishes a Handbook for Employers M-274 with step-by-step
instructions explaining how to complete each section of the document,
available here: https://www.uscis.gov/i-9-central/handbook-employers-
m-274

HOW DO I COMPLETE THIS CRAZY
THING???
For any specific questions concerning how to complete the Form I-9,
USCIS publishes a Handbook for Employers M-274 with step-by-step
instructions explaining how to complete each section of the document,
available here: https://www.uscis.gov/i-9-central/handbook-employers-m-
274

COMPLETING
FORM I-9
• New EE must complete Section 1 of the Form – by the end of
the first day of work
• New EE must provide documentation to prove their identity and
eligibility to work in the United States – by the end of the third
day of work
• The form lists three categories of acceptable documents, and
the employee must either produce:
• one document from List A, or
• one document each from Lists B and C, as follows:

SECTION 1. EMPLOYEE INFORMATION
AND ATTESTATION
• To be completed by EMPLOYEE.
• Employer MUST verify Section 1 is COMPLETE.
Employee
Information
• The EMPLOYEE MUST select one of the four categories and sign and date Section 1 of Form I-9.
• All employees must complete Section 1 no later than the first business day of employment for pay.
Employee
Attestation
• This certification is required when Section 1 is prepared by someone other than the employee.
• By signing, the preparer is attesting that Section 1 is true and correct to the best of his or her knowledge.
• Note that only the EMPLOYEE can sign the Section 1 Employee Signature Block.
Preparer/Translator
Certification
Reference: USCIS, Handbook for Employers M-274, available at https://www.uscis.gov/i-9-central/52-reverifying-or-updating-
employment-authorization-rehired-employees (last visited May 11, 2018).

SECTION 2. EMPLOYER VERIFICATION
•Completed by EMPLOYER.
•MUST be completed no later than 3 business days after the employee
begins work for pay.
Employee Information
•EMPLOYER MUST examine original documents.*
•Documents MUST be UNEXPIRED.
Documents the
employee presents
•You do not need to be an expert to exam presented documents.Employer Certification

ZERO TOLERANCE
If the employee fails to provide the authorization documents before the
end of the third day of employment, the employer must terminate the
employment relationship.

LIST OF ACCEPTABLE
DOCUMENTS
Make the Lists of Acceptable Documents available
to your employees when he or she is completing
the Form I-9
Must provide:
One document from List A OR One document
from List B AND one document from List C
Copying：
If you choose to photocopy documents, you must
do so for ALL employees, regardless of actual or
perceived national origin, immigration or
citizenship status, or you may be in violation of
anti-discrimination laws.
Note: Examples of theses documents appear in Part 13 of
USCIS’s Handbook for Employers (M-274)
https://www.uscis.gov/i-9-central/130-acceptable-documents-verifying-
employment-authorization-and-identity

WHAT DO I DO WITH THE EMPLOYEE’S
AUTHORIZATION DOCUMENTS?
• After Section 2 is signed, the employer must return the original
verification documents to the employee.
• If you choose to make copies of the verification documents for any
employee, you must make copies for all employees.

RECEIPT RULE
• Receipts may be used as temporary proof of employment eligibility when a List A, B or C
document has been lost, stolen or damaged.
• The receipt must be issued by the originating agency.
• The employee must present a replacement document within 90 days of the hire date.
EXCEPTIONS:
• The arrival portion of Form I-94/I-94A with a temporary I-551 stamp and a photograph
of the individual.
• The departure portion of the Form I-94/I-94A with a refugee admission stamp
• A receipt indicating that an individual has applied for an initial employment authorization
document (Form I-766) or for a renewal of an expiring employment authorization
document (Form I-766) is NOT acceptable for Form I-9.
• Receipts are never acceptable if employment will last less than 3 business days

SOCIAL SECURITY NUMBERS
• Providing a Social Security Number (“SSN”) in Section 1 is voluntary if
the employer does not participate in the E-Verify.
• If the employer participates in E-Verify, employees must provide their
SSN on Form I-9 too.
• If the employee has applied for an SSN but has not received it on the
staring date, the employee can leave this section blank until he/she
receives it.

EMAIL ADDRESSES & TELEPHONE
NUMBERS
• Providing an email address and phone number is optional.
• However, these fields cannot be left blank.
• Employee must write “N/A” if he/she does not want to provide such
information.

NON-ENGLISH SPEAKERS
• If your employee does not understand English, a preparer and/or
translator may help them complete Form I-9.
• The preparer and/or translator must read the form to the employee,
assist them in completing Section 1, and have the employee sign or
mark the form where appropriate.
• The preparer and/or translator must then complete the Preparer and/or
Translator Certification block.
• USCIS offers a Spanish version of Form I-9 for use in Puerto Rico only.
Employers in other jurisdictions can use the Spanish version as reference
but must require their employees to complete the Form I-9 in
English.

SECTION 3. REVERIFICATION AND
REHIRES
•Do not need to reverify if the employee’s work authorization documents
have not expired
Reverification
•Employees rehired after 3 years of original execution date must complete a
new Form I-9
•Need to verify the expiration dates on authorization documents
Rehires

WHEN TO REVERIFY
Do Not Reverify • U.S. Passport or Passport Card
• Permanent Resident Card
I-551)
• List B documents
Permanent Resident Reverification
Exceptions
• Reverify only if employee
presents a Form I-94 with a
temporary I-551 stamp, or
• A foreign passport with a
temporary I-551 stamp (on a
machine readable immigrant visa
(MRIV))
Usually Reverify • When employment authorization
document (List A or C) has an
expiration date

NAME OR SSN CHANGES
• For employees who legally change their name during employment,
Section 3 should be completed with the updated identification
information.
• Be careful that the “name change” is not actually evidence that the
employee was previously using false or stolen identification documents.
• In such a case, a new Form I-9 should be completed.
• Employer must include a written explanation of the need for a new Form
I-9 in Section 2. USCIS will take care of the rest. The employer is not
required to terminate the employee’s employment.

E-VERIFY
- Overview
- How to enroll
- When to verify
- How to create and close an E-Verify case
- Handling a Tentative Nonconfirmation (TNC)

WHAT IS E-VERIFY?
E-Verify is a free USCIS website that
verifies employment eligibility of new
hires.
It compares information from an
employee’s Form I-9 to records available
to the U.S. Department of Homeland
Security and the Social Security
Administration.
Reference: USCIS, What is E Verify, available at https://www.e-
verify.gov/about-e-verify/what-is-e-verify (last visited May 11, 2018).

STATE E-VERIFY LAW
Twenty-two states currently
require the use of E-Verify for at
least some public or private
employers*
*Data reference to SHRM, E-Verify Laws by State,
available at:
https://www.shrm.org/resourcesandtools/legal-and-
compliance/state-and-local-updates/xperthr/pages/e-
verify-laws-by-state.aspx (last visited April 3, 2018);
Tennessee Dept. of Labor & Workforce Development,
Employment Verification, available at
https://www.tn.gov/workforce/employers/staffing-
redirect/hiring-regulations/employment-
verification.html (last visited April 3, 2018).

GEORGIA
• From January 1, 2012, in Georgia, generally, you must enroll in E-Verify if:
• You employ more than 10 full-time employees; or
• You hold a public contract, which is a contract with a city, county, the state, a school
board, etc.
• Out-of-state employers with a public contact are required to enroll even if
you are based in another state with no employees in Georgia, if:
• You have landed a contract with the state, a county, city, school board or other public
agency for the “physical performance of services”
• with a value over $2,499
• Penalties for Non-Compliance
• Issuance and renewal of a state, county, or municipal business license shall be
contingent upon the employer’s registration with E-Verify.
• Persons acting in willful violation of the law by knowingly accepting identification
documents that are not secure and verifiable shall be guilty of a misdemeanor and
subject to imprisonment not to exceed 12 months, a fine not to exceed $1,000.00 or
both.
Reference: LawLogix, E-Verify Georgia, available at https://www.lawlogix.com/e-verify-map/georgia/ (last visited May 11,
2018).

HOW TO ENROLL
Read
• Read E-Verify Memorandum of Understanding (MOU) on USCIS website
• https://www.uscis.gov/e-verify/publications/memos/publications-memorandums
Sit
• Set aside time to do it. It’s not complicated but need to
• Designate at lease one program administrator in your company to manage E-Verify cases
Enroll
• https://www.uscis.gov/e-verify/e-verify-enrollment-page
• Click Enroll now and follow the instructions
Reference: USCIS, Enroll in E-verify, available at https://www.e-verify.gov/employers/enrolling-in-e-verify (Last visited May 11,
2018)

VERIFICATION LOCATION/HIRING
SITE & USER ROLES
A verification location creates cases in E-Verify for its hiring sites.
Program Administrators:
• Maintain their verification location’s employer account
• Manage user accounts for their verification location
• Create and view cases for their verification location
• Run reports for their verification location
General Users:
• Create and view cases for their verification location
Reference: E-Verify Memorandum of Understanding (MOU), available at https://www.e-
verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf (Last visited May 11, 2018)

REQUIRED POSTERS – MUST BE VISIBLE
TO PROSPECTIVE EMPLOYEES
• You must post the English and Spanish versions of the
‘Notice of E-Verify Participation’ and the ‘Right to Work’
posters in a prominent location that can be clearly
viewed by prospective and current employees.
• You may also provide a copy of these posters with job
application materials, such as on your company’s
website.
Reference: USCIS, E-Verify Posters Display is a Requirement,
available at https://www.verifyi9.com/e-verify-posters-display-
requirement/ (Last visited May 11, 2018)

I-9 PROCESS WITH E-VERIFY
I-9 Process I-9 Process with E-Verify
Employee completes Form I-9,
Section 1.
• Employee must include SSN when completing Form I-9, Section 1.
• If the employee has not been issued his SSN, complete Form I-9 as usual and attach a
memo to Form I-9 indicating the reason for the delay in creating the case in E-Verify.
• If employee provides email address, employer MUST enter it into E-Verify.
Employee chooses which
acceptable document(s) to
present.
• Employee chooses which acceptable document(s) to present.
• If a List B document is chosen, it MUST contain a photograph.
• If an employee chooses to provide a photo matching document, the employer must
make a photo copy and retain with the Form I-9.
Employer completes Form I-9,
Section 2.
• Employer completes Form I-9 Section 2.
If necessary, employer updates
or re-verifies employee’s work
eligibility in Section 3.
• E-Verify Case Status will prompt employer to update or reverify in Section 3 or Form I-
9. However, a case should NOT be created in E-Verify.
NOTE: All documents must be unexpired. Names should appear on Form I-9 exactly as they appear on documents. No
nicknames should be used.
Reference: E-Verify Memorandum of Understanding (MOU), available at https://www.e-
verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf (Last visited May 11, 2018)

ENTERING COMPLEX SURNAMES
• To avoid an unnecessary TNC due to a name mismatch click the
icon next to the “Last Name” field to reveal the helper text.

E-VERIFY MUST BE COMPLETED
WITHIN 3 DAYS OF HIRE
Get Form 1-9
Information
Logon to E-Verify Open a new case

INITIAL RESULTS
I N I T I A L V E R I F I C A T I O N W I L L R E T U R N O N E O F T H R E E R E S U L T S
• The employee is authorized to work.
Employment
Authorized
• There is an information mismatch
Tentative
Nonconfirmation
• DHS will usually respond within 24 hours with either:
• Employment Authorized or
• DHS Tentative Nonconfirmation
DHS Verification
Process

WHAT IS A TENTATIVE
NONCONFIRMATION?
• A TNC means that information from an employee’s Form I-9 did not match
government databases. However, it may not mean an employee is unauthorized to
work or is present in the United States unlawfully. There are legitimate reasons why an
employee may receive this result.
• Common reasons for TNCs:
• Social Security number (SSN) does not match
• Identification document could not be verified
• Citizenship or immigration status changed
• Name change was not reported
• Name entered on I-9 is different than recorded in government databases
• Information was not entered correctly in E-Verify

HANDLING A TNC
• Print the TNC Further Action Notice and review it with the
employee promptly and privately.
• Employees have the right to contest or not contest a TNC.
• If the employee decides to contest the TNC, refer him or her to
the appropriate agency;
• If the employee decides not to contest the TNC, terminate their
employment.
• Employees who choose to contest should be provided the
Referral Date Confirmation.
• Both the TNC Further Action Notice & Referral Date
Confirmation are available in 18 languages: Foreign
Language Resources
DO NOT
• Try to influence or coerce the
employee’s decision to contest a
TNC
• Terminate or take adverse action
against an employee who is
contesting a TNC
• Ask for additional documentation
after obtaining a TNC for an
employee
Reference: USCIS, How to Correct a Tentative Nonconformities, available at https://www.e-
verify.gov/employees/tentative-nonconfirmation-overview/how-to-correct-a-tentative-nonconfirmation (Last visited May
11, 2018)

STORAGE
• Form I-9 must be on file for all current employees.
• Store Forms I-9 securely in a way that meets your business needs – on
site, off-site, storage facility or electronically.
• Designate a person in charge and ensure that only authorized personnel
have access to stored Forms I-9.
• Make Forms I-9 available and make sure you can put them together
promptly during a inspection (within 3 days of an official request)

RETENTION
Forms I-9 must be retained for:
3 years after the date you hire an employee
or
1 year after the date employment terminates, whichever is
later.

STAY UP TO DATE
- Immigration Changes You Must Keep Pace with

I-9 AND E-VERIFY
Subscribe to e-Newsletter E-Verify
Connection
-Write SUBSCRIBE in the subject line
to E-VerifyOutreach@dhs.gov
Check website:
- www.uscis.gov/I-9Central
- www.dhs.gov/E-Verify
- www.uscis.gov/SelfCheck
Other topics:
• Work related VISAS
• https://travel.state.gov/content/travel/e
n/us-visas/immigrate/employment-
based-immigrant-visas.html
• Job-based Greed Cards
• https://www.uscis.gov/green-
card/employment-based

SIGNIFICANT ACTION AGAINST
UNDOCUMENTED IMMIGRANTS
On September 28, 2017, Asplundh Tree Experts, Co. (“Asplundh”) was
ordered to pay $95 million dollar recovery, $80 million criminal
forfeiture money judgment and $15 million civil payment, and abide
an Administrative Compliance Agreement for hiring unauthorized
workers and violation of the immigration law. The company had
decentralized its hiring so that Sponsors (the highest levels of
management) could remain willfully blind while Supervisors and
General Foremen (2nd and 3rd level supervisors) hired ineligible
workers.
In January 2018, federal enforcement agents raided nearly 100 7-
Eleven stores across the country. Twenty-one (21) people were
arrested and the businesses will be required to produce Forms I-9 for
all employees to prove work authorization.
In 2016, a staffing company, Golden Employment Group, Inc., was
found liable for I-9 violations and fined $209,600 in civil penalties.

THANK YOU!
Beau Howard
Freed Howard LLC
beau@freedhoward.com
(470) 839-9300

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