Fines Based Upon Inadequate Electronic I-9 System used to Track Worker Eligibility
Abercrombie & Fitch has been fined $1,047,110 in a settlement reached today with U.S. Immigration and Customs Enforcement ((ICE) for numerous technology-related deficiences in the company’s electronic I-9 system.
Referencing the ICE Press Release, the settlement is the result of a November 2008 Form I-9 inspection of Abercrombie & Fitch’s retail stores in Michigan. The company was fully cooperative during the investigation and no instances of the knowing hire of unauthorized aliens were discovered. Since the initial inspection, Abercrombie & Fitch has taken measures to revise its I-9 Electronic Compliance Program, and has begun to implement new procedures to prevent future violations of federal immigration laws.
“Employers are responsible not only for the people they hire but also for the internal systems they choose to utilize to manage their employment process and those systems must result in effective compliance,” said Brian M. Moskowitz, special agent in charge of ICE HSI for Ohio and Michigan. “We are pleased to see Abercrombie working diligently to complete the implementation of an effective compliance system; however, we know that there are other companies who are not doing so. This settlement should serve as a warning to other companies that may not yet take the employment verification process seriously or provide it the attention it warrants.”
With the above being said — this is a definite attention getter! There’s alot of I-9 software on the market. Some we’re familiar with – and others we are not. Electronic I-9 software must adhere to certain recordkeeping standards and technical safeguards in order to ensure that the underlying I-9s are accurate, authentic and trustworthy. Systems must retain the same sequence of data elements on the paper I-9.
The main point here is to recognize that your I-9 system is a compliance system which must serve a unique compliance function. Yes, we know that you want the fancy tools and flagging systems, but the essential fundamentals are critical. We like the following questions provided by LawLogix’ electronic I-9 team:
- Will the vendor provide third party independent evaluation of the system (preferably by an attorney with deep I-9 experience)?
- What type of guarantees does the vendor provide in the contract (e.g., indemnification for gross negligence)?
- Is the vendor able to provide 5 similarly situated client references that use the same I-9 system? This is an important one and will speak directly to how well the vendor is supporting their product, releasing updates, responding to constant changes in I-9 policy and procedure. You should ask the references whether or not they have been subjected to an ICE audit using the vendor’s system and how quickly the vendor was able to respond to ICE demands.
Conducting your due deligence goes without saying – don’t believe all the hype re bundled in legal services. LawLogix, who we are familiar with and highly recommend, state that there is no “one size that fits all”. Careful planning is required and discussion with trusted immigration counsel advisable prior to any decisions being made.
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