Justice Department Announces Latest Settlement in I-9 Discrimination Charge

The Justice Department has announced a settlement agreement with Aquatico Pool Management, Inc., as a result of an I-9 discrimination complaint brought by a lawful permanent resident who was seeking employment as a part-time swim instructor. According to yesterday’s press release, the individual presented a valid permanent resident card during the I-9 process as well as a Social Security Card which had the notation “valid for work only with DHS authorization.” Although the permanent resident card alone satisfied the section 2 documentation requirement, the company allegedly refused to hire the individual because of the restricted SS card. The anti-discrimination provision of the Immigration and Nationality Act prohibits unfair documentary practices (known as document abuse), which occurs when employers treat individuals differently on the basis of national origin or citizenship status in the I-9 process. Document abuse covers four types of prohibited practice, including:

1. Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization; 2. Improperly requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization; 3. Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and 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.

For more information, check out page 19 of the M-274 Employer Handbook.      As a result of the investigation, Aquatico agreed to pay a civil penalty of $1,100 for the single act of document abuse, and $499.20 in back pay and interest to the individual.  The company must also undertake a series of preventative measures including:

  • Posting anti-discrimination notices in places where notices to employees and job applicants are normally viewed. The company must also post the notice on its website.
  • Distributing copies of the M-274 Handbook to all owners, managers, and employees involved in the I-9 process
  • Training all of the above-mentioned individuals on proper I-9 completion (the settlement suggests this be done through webinars by the company’s attorneys)
  • Adopting and implementing a written policy (which must be approved by the DOJ) describing the company’s nondiscriminatory employment eligibility practices.

Lastly, the Department of Justice will monitor Aquatico’s I-9 practices for three years to ensure adherence to all of the above.