Major U.S. Airline Agrees to Pay Over $200,000 to Resolve I-9 Discrimination Claim

Last week, the Department of Justice announced a six-figure settlement agreement with United Continental Holdings Inc. based on allegations that divisions of the company previously operating as Continental Airlines discriminated against non-citizens during the I-9 process. According to the DOJ’s press release, the “pre-merger” Continental Airlines had a practice of requiring lawful permanent resident employees to provide more documentation than is legally required and to complete additional I-9 forms after hire. Continental apparently did not, however, have this same requirement for U.S. citizen employees (and hence the claim of discrimination).

Under the terms of the settlement agreement, United Continental has agreed to pay $215,000 to resolve the allegations, create a $55,000 back pay fund to compensate individuals who may have lost wages due to the company’s practices, and undergo training on I-9 related anti-discrimination.  The company will also be subject to DOJ monitoring of its I-9 reverification practices for a period of two years. Meanwhile, the company has denied the allegations of discrimination, describing it instead as simply an administrative error without intent to discriminate.

Caught between a rock and a hard place

We often talk about the employer being caught between a rock and a hard place in completing the I-9 form. On the one hand, employers are held responsible for ensuring that their employees are authorized to work in the U.S., while on the other hand, they can be penalized for going “too far” when reviewing section 2 documents. Specifically, the anti-discrimination provision of the Immigration and Nationality Act prohibits employers from treating individuals differently on the basis of national origin or citizenship status, which can be inferred by I-9 document review practices. The following prohibited activities constitute what is casually referred to as “document abuse” (an odd term for sure, but it certainly reflects the gravity of the situation):

1. Improperly requesting that employees produce more documents than are required by the Form I-9 to establish the employee’s identity and employment authorization

Example: employer requests a non-citizen to present one document from List A and one document from List B as well

2. Improperly requesting that employees present a particular document to establish identity and/or employment authorization

Example: employer requests lawful permanent residents to always produce a green card, even if they have a driver’s license and unrestricted social security card

3. Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them

Example: employer rejects EAD card, even though it is valid on its face.

4. Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to produce particular documents the employer does not require other employees to produce.

Example: employer requires all new hires with a Spanish accent to present a green card

In recent years, the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) has been vigorously investigating and prosecuting such claims of discrimination, and employers found to be engaging in discriminatory activity have been required to pay civil penalties and any appropriate back pay.

Lawful Permanent Residents and the I-9 Process

Getting back to the case at hand, it appears (based on the press release) that Continental may have engaged in the first 2 examples of document abuse by requesting lawful permanent residents (LPRs) to provide additional proof of work authorization during the initial hire process as well as “additional I-9s” after the fact (most likely by reverifying LPRs when their documents expire). As we have discussed in the past, DOJ settlements frequently concern LPRs who are wrongly terminated or refused employment based on their I-9 document selection. The most common misconception is that LPRs must present a “green card” for section 2 (when in fact, there are other acceptable document combinations such as a driver’s license and an unrestricted social security card).

Lesson Learned

So, how should employers ensure that I-9s are completed properly without engaging in the dreaded document abuse? Here are 3 essential steps:

1. Engage experienced immigration counsel to evaluate your current I-9 practices (including a spot audit of I-9s and review of the overall I-9 process to look for potential discrimination)

2. Develop policies, documentation, and training – the 3 best ways to ensure that your organization is on the same page when it comes to balancing the competing concerns of I-9 completion and workers’ rights.

3. If you’re not already doing so, make sure to utilize a well-designed electronic I-9 system, which can help you enforce those policies and procedures outlined above. For example, your I-9 system should allow you to select from ALL possible documents in section 2 (regardless of the employee’s attestation) while at the same time alerting you to inconsistencies which could lead to ICE fines. Your software should also prevent improper reverification of a lawful permanent resident and enable the enforcement of employer-wide policies regarding document review.