Back to the Basics: Avoiding Anti-Discrimination and Unfair Immigration-Related Employment Practices in the I-9 Process
[Editor’s Note: today’s blog is courtesy of Ilana Drummond of Jackson & Hertogs
While much of the discussion regarding employee verification focuses on the mechanics of the I-9 completion, documentation and retention, employers need to also put other safe-guards in place to ensure that they are not discriminating against individuals who are authorized to work. It is important to keep in mind that while ICE and the typical I-9 audit focuses on possible violations under INA § 274A, the employer must still balance these documentation requirements with the Anti-discrimination and Unfair Immigration-Related Employment Practices which fall under INA § 274B. The employer is therefore dealing with at times conflicting forces in its adherence to IRCA rules regarding I-9 completion.
The I-9 process and its potential sanctions could actually result in employers being discouraged from hiring individuals who “may” be authorized to work. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)’s website cites to a GAO report that confirmed that the Form I-9 process led to discrimination, primarily against US citizens and work authorized individuals who were Hispanic and Asian. The GAO report also discussed its findings in the area of the confusion employers had regarding the proper procedures for completing the Form I-9, and about the appropriate documentation that could be presented and accepted.
Congress attempted to address these concerns in INA § 274B-the Anti-Discrimination and Unfair Immigration-Related Employment Practices. INA § 274B applies to employers with more than 3 employees and outlines four types of unlawful conduct:
- Citizenship or immigration status discrimination;
- National origin discrimination;
- Unfair documentary practices during the Form I-9 process (document abuse); and
Citizenship or immigration status discrimination with respect to the hiring, firing and referring or recruiting for a fee. Discrimination occurs when an employer treats individuals differently because of their citizenship or immigration status or because the individual is perceived as looking or sounding foreign.
National origin discrimination prohibits employers from treating individuals differently because of their place of birth, country of origin, native language or accent (IRCA anti discrimination laws cover employers with 4-14 employees while the Equal Employment Opportunity Commission oversee the compliance of employers with 14 or more employees).
Unfair documentary practices during the Form I-9 process (document abuse) this happens when an employer requests more or different documents than are required or rejects documents the employee chooses to present. An example here is when an employee checks off on Section 1 that she is a lawful permanent resident but the employer asks to see her green card when she attempts to present her unexpired drivers license and unrestricted social security card. Another example is to demand a birth certificate from an individual who marks that he is a US citizen because the employer has assumed that he can’t be given his heavy accent. Both of these are examples of document abuse. Instead, the employer should provide the employee with the list of acceptable documents that could be presented and allow the employee to present what he or she wants to present. So long as the documents appear on their face to be legitimate and relate to the individual, they should be accepted without question or a demand for other documents. This is one of the key training items that should be covered with the individuals responsible for I-9 completion on behalf of an employer. Refresher training on a regular basis should also be provided.
Any of these first three categories of discrimination could occur as part of the recruiting and hiring of employees or in completing the verification process itself. Unless information is freely volunteered by the individual it is simply not permissible to ask. Using a more general statement-that is used for all applicants is essential. For example, asking a general question of all applicants interviewed whether one has the right to accept unrestricted employment in the United States is acceptable—preferably this is asked as a standard question on an application form rather than chancing recruiters or managers to (1) remember to consistently ask and (2) to remember to say the words in exactly the same way each time. Including a statement on all offer letters advising new hires that they will be required to comply with IRCA requirements on the first and third day of employment is acceptable. The theme here is to be consistent and treat everyone the same.
Lastly, the retaliation section specifically means that it is prohibited to intimidate, threaten, coerce, or retaliate against an employee who has engaged in IRCA or Title VII protected conduct such as filing a charge or complaint, testifying, assisting or participating in an investigation, proceeding or hearing for discrimination based on citizenship status or national origin.
The prosecutor for such claims under the Anti-Discrimination and Unfair Immigration-Related employment practices is the Office of Special Counsel within the Civil Rights division of the department of justice. The OSC’s prosecutorial mission is decidedly different from that of ICE’s. ICE focuses on ensuring that employers are only hiring individuals authorized to work and ensuring documentary compliance while OSC is responsible for ensuring that the employer’s compliance efforts do not result in an unfair hiring practice.
Protected individuals are citizens and nationals of the US; lawful permanent residents, aliens who are granted temporary residence, refugees and asylees. Individuals fall out of this protective class if they fail to apply for US naturalization within six months of becoming eligible to do so and fail to complete the naturalization process within 2 years of filing. Notwithstanding, INA § 274B(a)(3)(B) an employer can prefer to hire US citizens or nationals over other candidates who are equally qualified.
In any audit of I-9 documents, Anti-discrimination and Unfair Immigration-Related employment practices should be an integral part and serve as one of the guideposts.
For example, if in an internal audit, the employer discovers that it is missing a number of Forms I-9 the employer would likely opt to complete replacement forms I-9 in order to mitigate Section 274A violations. While this does not “correct” the error as there is no correction available for missing forms, under OCAHO case law such replacement documents may be looked at as a mitigating factor if a fine is imposed. However, if it is perceived that only certain employees are targeted for replacement I-9 procedures (for example, only Hispanic or “foreign” sounding employees), it could be seen as a discriminatory action on the part of the employer. Therefore, tremendous care in how the compliance issues are communicated to all employees with particular sensitivity to those employees who may be asked to re-confirm employment verification late. The key here is to treat all employees the same, review Forms I-9 in a consistent manner and handle all re-I-9 processes similarly.
Any audit of an employer’s I-9 records should include an audit of the employer’s overall compliance program and must be particularly sensitive to rooting out potential policies and procedures that may tip the I-9 compliance into one that could be considered discriminatory. The audit should include reviewing offer letter templates, job application forms, application procedures, interview procedures and on-boarding procedures. In fact, such reviews should be conducted annually with input from both immigration and employment counsel even if not tied to an actual I-9 audit. Part of the role of an external audit conducted by an experienced attorney is to determine to what extent the compliance policies and procedures, compliance manuals, training programs and overall implementation are in compliance.
Civil Penalties for Anti-Discrimination and Unfair Immigration-Related Employment Practices Violations
|Number of Prior Violations||Before 03/27/2008||On or After 03/27/2008|
|First Time Violators||$275 – $2,200||$375 – $3,200|
|Prior Single Order for Violation||$2,200 – $5,500||$3,200 – $6,500|
|More than One Prior Violation||$3,300 – $11,000||$4,300 – $16,000|
This chart represents the potential monetary penalty ranges for violations not including document abuse. For violations regarding unfair document practices the fines range from $100-$1000 per violation. In addition to fines, other penalties can include
- An Order to cease and desist the prohibited practice and engage in one or more corrective action
- Hiring injured individuals with or without pay
- Up to 2-years of back pay prior to the date of filing with OSC
- Posting notices to employees about their rights
- Educating personnel involved in hiring
- Removing false performance reviews
- Compiling for review information regarding all applicants for job openings up to a 3-year period; and
- Attorneys fees
Given the potential liabilities, Anti-Discriminatory and Unfair Immigration-Related Employment Practices must be considered as an integral part of any compliance audit whether conducted internally or externally. They should be included in any training program involving an employer’s hiring practice and a periodic review of the hiring practices to ensure compliance is essential.
Employers are also encouraged to call OSC’s Employer Hotline (1-800-255-8155 [Voice] or 1-800-362-2735 [TTY]) with questions about discrimination during the employment eligibility verification (Form I-9) Process.