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I-9 and E-Verify Software Due Diligence After Rose Acre Farms

In the world of electronic I-9 and E-Verify software, the need to conduct due diligence on the software’s legal compliance and the vendor’s expertise is critical (if not more), not only because of the threat of scrutiny from government agencies, but also from resulting negative publicity, civil fines, payments of back-wages, legal fees and other “punitive-like” measures.

The US Department of Justice announced the filing of a lawsuit by the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) against Rose Acre Farms Inc., a major U.S. egg producer, for discrimination in the I-9 process. As with other recent OSC defendants and respondents, Rose Acre is accused of requesting excessive I-9 documentation (also known as “document abuse”) from newly hired non-U.S. citizens (such as permanent residents, nonimmigrant visa holders, & those who have work authorization incident to status) in order to verify employment eligibility.

Unlike recent cases, however, the OSC specifically charged that Rose Acre purchased an electronic I-9 software system in June 2009 that may have prompted human resource officials to demand certain documents from non-U.S. citizens. Is it possible for an employer, through its electronic I-9 system, to commit document abuse? And if so, can OSC prevail in its demand for monetary damages and civil penalties. In light of these legal developments, how should employers conduct due diligence of electronic I-9 and E-Verify software?

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