Harmful I-9 Hiring Practices Employers Should Avoid

[Editor’s Note: Today’s article is courtesy of Josie Gonzalez, Partner and Amanda Paquet, Attorney at Stone Grzegorek & Gonzalez LLP.]

Immigration-related employment practices have become more and more complex and it is now more likely than ever that a seemingly harmless hiring practice may lead to a charge against an employer for discrimination on the basis of national origin, citizenship, or immigration status, including discriminatory Form I-9 and E-Verify practices.  The opportunity to get “caught” is enhanced because the Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) and the National Labor Relations Board (“NLRB”) have recently “teamed up” to combine their resources to address claims against employers, announced here.  This is the latest in over 50 such partnership agreements that the OSC has with federal, state and local agencies, including USCIS, EEOC, and the State of California Department of Fair Employment & Housing.

Highlights from the Memorandum of Understanding (“MOU”) between the OSC and NLRB include:

  • Referral to appropriate agency – If it becomes apparent to OSC or NLRB personnel during case intake or case processing that the alleged conduct may also fall within the jurisdiction of the other agency, they will advise the complaining party that it may be appropriate to file a charge with the other agency and will provide the individual with informational materials regarding the other agency’s jurisdiction and contact information.
  • NLRB charge may toll statutory time limit for charges with OSC – Under the MOU, the “OSC considers the NLRB as its agent for the sole purpose of accepting charges that fall within the OSC’s jurisdiction in order to toll the statutory time limits for filing charges.”  (Charges with the OSC must be filed within 180 days of the last alleged act of unlawful conduct.)  With the charging parties’ consent, the NLRB will forward charges to the OSC that implicate a possible immigration-related unfair employment practice.  OSC will then treat these NLRB charges as an OSC charge filed on the date that the NLRB received its charge.
  • Coordination of investigations – “[B]oth agencies shall coordinate the course of their respective investigations and will share information and participate jointly in the investigation, to the extent permitted under applicable law and agency policy, so as to minimize duplication of effort.” (Emphasis added.)  Further, one agency may request to review the investigative file of the other agency and both agencies agree to cooperate with each other in response to FOIA requests by outside parties.

Some Examples of Seemingly Harmless Hiring Practices

  • Over-documentation – Obtaining and recording work authorization and identity documents that exceed the minimum requirements of either List A or B and C of Section 2 of the Form I-9.
  • Insisting on the presentation of specific documents from certain applicants, especially those applicants who appear foreign-born – For example, for the Hispanic employee who claims U.S. citizenship, one cannot insist on a U.S. birth certificate or passport when a driver’s license and social security card suffice for work authorization.  The temptation is strong to ask for certain documents that match the status checked in Section 1 of the Form I-9, such as asking for a permanent resident card for the individual who claims permanent resident status.  However, the applicant always has the choice to present either the alien registration card or an unexpired government ID and social security card or other acceptable documents.
  • Rejecting valid documents because of unfamiliarity with their validity – Note that USCIS has issued numerous alien registration cards and employment authorization cards over the years.  Employers should become familiar with all the acceptable versions of these documents, examples of which are available here.

How Costly Are the “Harmless” Hiring Practices? The concern is not just theoretical. On June 27, 2013, the OSC announced a settlement agreement with national retailer resolving unspecified allegations that the retailer engaged in unfair documentary practices during the employment re-verification process, resulting in economic harm to some work-authorized individuals through lost work or seniority.  Some of the penalties include:

  • Paying $175,000 in civil penalties and creating a $100,000 back pay fund to compensate the individuals who suffered economic harm;
  • OSC monitoring for two years;
  • Training and related reporting requirements for human resources personnel through 2015.

Allegations are not always unspecified in settlement agreements.  Nevertheless, employers must remember that just as in the initial Form I-9 process at time of hire, when re-verifying an employee’s expired work authorization, an must also allow employees to present any document or combination of documents acceptable by law.  The same principles that apply to the manual completion of the Form I-9 also apply to the electronically completed Form I-9.  With the advent of electronic Form I-9 programs, new, uniquely errant hiring practices have surfaced.  For example, some electronic vendors have been known to lock out an employee’s choice of documents to present in order to conform with the immigration status the employee had selected in Section 1.  This practice is not permissible.  In fact, the recent settlement indicates the national retailer’s electronic vendor might have contributed to this unlawful practice:

Within 120 days of the effective date of this Agreement, Respondent shall modify its electronic Form I-9 system to permit employees to complete Section 1 of the Form I-9 and to present documentation for Section 2 of the Form I-9 in a manner that complies with all employment eligibility verification laws and regulations.

Do’s and Don’ts for Avoiding these Seemingly Harmless Hiring Practices

With OSC’s partnership with numerous agencies at the federal, state and local level, it is now more likely than ever that a seemingly harmless hiring practice may lead to an OSC charge.  We recommend the following tips to help employers reduce encounters with OSC:

  • DON’T – Specify particular document(s) an employee should present to satisfy Form I-9 requirements or insist on more or different documents than those listed in the Form I-9 instructions.
  • DON’T– Require certain documentation from some applicants because of how the applicant answered Section 1 of the Form I-9.
  • DO – Give all employees the Form I-9 instructions that list the acceptable documents and let them choose which listed document(s) to present. This is a recommended best practice.
  • DO Become familiar with all versions of commonly-used List A, B, or C documents.  Documents that reasonably appear to be genuine and relate to the employee presenting them should be accepted.
  • DO – Remember that the above guidance applies both to “hard copy” and electronic Form I-9 systems, and not only to the initial Form I-9 process, but also to re-verifications.
  • DO – Check electronic I-9 systems for regulatory compliant systems by understanding how the vendor updates its systems and stays legally informed.

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Josie Gonzalez, Partner, Stone Grzegorek & Gonzalez LLP, is recognized nationally as an expert in employment-based immigration, I-9 compliance and worksite enforcement.  Josie has served in AILA committee leadership positions in the areas of worksite enforcement and labor certification (PERM), and is a longtime member of the AILA Board of Governors.  In 2008, Josie received a Founder’s Award from AILA as the immigration attorney having “the most substantial impact on the field of immigration law or policy.” Josie also received from AILA a President’s Commendation in 2006 for outstanding contributions in the field of labor certification, including editorial responsibilities for the leading treatise on labor certification.  Earlier, Josie had received the Edith Lowenstein award from AILA for excellence in advancing the practice of immigration law.  Josie, moreover, has been recognized by local lawyers with a Lifetime Achievement Award granted by the Immigration Law Section of the Los Angeles County Bar Association. For the fifth year, she was selected as a Band One immigration lawyer for her “excellent reputation” by the international legal guide Chambers and Partners. She also was ranked as Band One for Business Immigration.

Amanda Paquet, Stone Grzegorek & Gonzalez LLP, is a former in-house counsel and litigator whose current practice is devoted exclusively to immigration law, with particular emphasis on I-9 compliance, worksite enforcement and investment immigration.  Amanda was Director of Labor Relations and Employment Law for a Fortune 100 corporation with over 200,000 employees.  Her responsibilities included the development and oversight of its business immigration program as well as the development of the company’s Form I-9 compliance program.  Amanda also has extensive experience as an employment law litigator at an AmLaw 100 firm in Texas.  Throughout her career, Amanda has conducted hundreds of training sessions for audiences ranging from small groups to the thousands.  Amanda is a member of the American Immigration Lawyers Association, the Hispanic National Bar Association, and the Professionals in Human Resources Association.  She has been a member of the Texas State Bar since 1995 and the California State Bar since 2008.