This week the Justice Department settled with Diversified Maintenance Systems, LLC, a provider of janitorial and facilities maintenance services based in Tampa, Florida. The Office of Special Counsel (“OSC”) pursued the Florida employer claiming they retaliated against one of their employees based on a final non-confirmation result generated from the E-Verify program.
The employer in this case was enrolled in E-Verify and initiated a case for one of its employees. The employer then verbally informed the employee in question about the tentative non-confirmation that was generated as a result of a data mismatch. While the employee immediately visited the Social Security Administration (SSA) after receiving verbal notice of the initial data mismatch and instructions from her supervisor, the employee alleged that the supervisor failed to give her the proper E-Verify paperwork. Apparently, SSA was unable in this case to resolve the mismatch without the paperwork. Because the employee was unable to resolve the mismatch, the E-Verify system ultimately produced an erroneous “final non-confirmation.” The employee was fired as a result whereupon she called the E-Verify hotline to seek assistance. An E-Verify agent notified the employer that the employee was authorized to work, but the employee’s manager declined to reinstate her employment. OSC alleges that the employer refused to reinstate the employee because she contacted E-Verify and asserted her right to work under the anti-discrimination provision of the Immigration and Nationality Act.
OSC investigating employers based on E-Verify conduct is a new trend – and something all users of E-Verify should be paying attention to.