$250,000 Civil Penalty Issued by DOJ in Immigration-Related Settlement

This year, Christmas came late for the U.S. Department of Justice but it came in the form of a $250,000 civil penalty.  For one food service provider based in South Carolina, the announcement today came after a culmination of a lengthy three-year investigation on alleged immigration-related discriminatory conduct.

How the Case Began

Part of the Department of Homeland Security’s modernization efforts includes greater collaboration with other government agencies.  In this case, the USCIS referred the case to the U.S. Department of Justice’s Civil Rights Division, Office of Special Counsel (OSC) base on a Memorandum of Understanding between the two agencies.  Settlements that involve allegations of employment-related usually are managed by the OSC. In this particular case, OSC conducted an investigation of the employer over a three-year period after referral from USCIS.  It only recently concluded its investigation by entering into a settlement requiring a payment of $250,000 in civil penalties from the employer.  According to the Department of Justice, this was the third highest settlement to be paid “since the enactment of the INA’s anti-discrimination provision in 1986.”  The settlement was announced today.

The Allegations

During its investigation, OSC alleged a pattern or practice of treating non-U.S. citizens who were work eligible differently from U.S. citizen workers.  The practices occurred during the I-9 process and E-Verify process where specific documentation from non-U.S. citizens were required to be presented.  U.S. citizens workers were exempted from additional documentation requirements during these same processes.  [The specific facts have not been released at the time of publication of this article.]

The Settlement Agreements

In addition to the civil fine of $250,000, the employer must also compensate victims by paying lost wages to potential victims, undergo government-administered training on anti-discrimination provisions of the INA, and agree to have its I-9 and E-Verify practices be monitored by the government for the next three years.  [Is this sounding familiar?]

The Takeaway

In the last year, we haven’t read about many penalty cases with such a high amount in civil penalties.  Absent specific details one would normally be privy at a settlement conference; we can only speculate that the OSC was serious about pursuing its case against this (and other) employers alleged to have violated the INA anti-discrimination provisions.  If our readers haven’t noticed, practices that require certain groups of workers to present more or different documents than other groups of workers, absent a lawful reason, will likely trigger greater scrutiny by the government during an investigation. Is this a harbinger that more referrals by USCIS to the U.S. Department of Justice on these types of allegations are on the rise?  What is a fact is that the OSC is beginning to increasingly review more E-Verify non-compliance cases.

Is your organization vulnerable? Now might be a good time to evaluate your I-9 and E-Verify procedures to determine if changes are necessary.