Healthcare System agrees to pay $257,000 penalty for unfair I-9 documentary practices

The Department of Justice has announced a record settlement agreement with Catholic Healthcare West (CHW), the eighth-largest health system in the nation, to resolve allegations that CHW engaged in a pattern or practice of citizenship status discrimination during the I-9 process for new hires.

According to the settlement agreement, the Department of Justice (DOJ) determined that there was reasonable cause to believe that CHW required non-U.S. citizens and naturalized U.S. citizens to present more work authorization documents than required, but permitted native-born U.S. citizens to provide documents of their own choosing. The anti-discrimination provision of the Immigration and Nationality Act prohibits this sort of unfair documentary practice which occurs when employers treat individuals differently on the basis of national origin or citizenship status.

As part of the settlement, CHW has agreed to pay $257,000 in civil penalties (the largest civil fine ever paid to resolve I-9 discriminatory allegations) as well as $1,000 in back pay to the charging party. CHW has also agreed to complete an I-9 review (conducted by employees who are independent of the routine I-9 process) of all non-US citizens and naturalized citizens hired at all CHW hospitals and medical centers to identify each instance of over-documentation and whether employees suffered lost wages due to the document abuse. CHW will also establish a corporate-level review team to review I-9 practices and policies at each facility and contact HR members who are guilty of over-documentation. In addition, CHW agreed to train its HR personnel on their responsibilities not to discriminate and provide periodic reports to the department for three years.

As previously reported, the Department of Justice has placed a renewed emphasis on enforcing these anti-discrimination provisions through several high-profile investigations against employers such as Macy’s, Morton’s Steakhouse, and the John Jay College of Criminal Justice. Healthcare employers, such as CHW, are particularly prone to I-9 issues, given the relative size of the industry and the diversity of its workforce. Many employees in the industry are on part-time schedules where others are working long hours at institutions which need staffing around the clock. Shift work is common in some occupations, such as registered nurses, as well as in other emerging segments including home healthcare services.  Maintaining I-9 compliance over such a diverse entity can be challenging at best, and many employers clearly struggle with maintaining consistency and accuracy.

To address such issues, employers should proactively discuss I-9 compliance with experienced legal counsel and implement training programs on proper I-9 procedures to avoid immigration-related unfair employment practices.  In addition, employers should strongly consider adopting an electronic I-9 system which can prevent over-documentation (e.g., if employee presents DL and SS card, employer cannot then also choose a green card (I-551) on the electronic I-9). While this system alone will not necessarily prevent discrimination, it can be used as a great educational tool along with comprehensive training and policies.