The government’s recently filed lawsuit against Rose Acre Farms, a large U.S. egg producer, for discriminatory document practices arising from the company’s use of nowHIRE, an electronic I-9 program, underscores the pitfalls of using electronic I-9 software without the benefit of rigorous due diligence.
According to the government’s complaint, nowHIRE prompted prospective non-citizen employees to produce additional or specific documents in violation of the Immigration and Nationality Act’s anti-discrimination provisions. The case brings into sharp relief the Office of Special Counsel’s (OSC) increased scrutiny toward electronic Form I-9 systems that attempt to simplify the Form I-9 completion process, as well as the potential liabilities faced by employers who disproportionately rely on these programs to satisfy immigration compliance obligations.
Although electronic Form I-9 programs can be a useful tool in employers’ overall immigration compliance process, companies would do well to do their own due diligence by partnering with experienced immigration counsel and obtaining vendor indemnification for any errors caused by electronic Form I-9 software. In addition, companies who wish to stay ahead of the liability curve should avoid over-reliance on the perceived compliance of electronic Form I-9 software and ask detailed questions about the product’s features, compliance tools and expert input, as well as its training, security and functionality components. Importantly, employers should also tailor their choice of electronic Form I-9 software, as well as the decision to automate their Form I-9 process at all, to company-specific needs, budgets and workforce characteristics such as size and geography.