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Justice Department Sues Teaching Hospital for Pattern or Practice of I-9 Document Abuse

Today, the Department of Justice reminded us again that sometimes employers can go too far in their I-9 obligations, crossing that difficult (and often blurry) line between diligent review and discriminatory practices.

The DOJ’s latest reminder came courtesy of a press release, announcing the filing of a lawsuit by the DOJ’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) against the University of California, San Diego Medical Center (UCSD Medical) for discrimination in the Form I-9 process. According to the press release, the DOJ’s independent investigation revealed that the medical center engaged in a pattern or practice of requesting excessive I-9 documentation from newly hired non-U.S. citizens (such as permanent residents, nonimmigrant visa holders, etc.) in order to verify or re-verify employment eligibility. The complaint seeks a court order prohibiting future discrimination by UCSD Medical, monetary damages for any individuals harmed by those actions, and civil penalties.

The Investigation Begins

According to the complaint, filed with the Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer, the DOJ began their investigation after receiving a telephone call from a lawful permanent resident who allegedly complained that she had received a letter from UCSD Medical requiring her to provide an unexpired Form I-551 permanent resident card by the date her current I-551 was set to expire or else risk termination. After making a few inquiries, the DOJ determined that UCSD Medical may in fact be engaging in a pattern or practice of discrimination against non-citizen new hires in both the initial I-9 and reverification processes.

The Initial I-9 Process – Based on a Flawed Policy

The OSC alleged that between January 2004 and June 2011, UCSD Medical had a policy of requiring all non-citizen new hires to present a List A document, issued by the U.S. Department of Homeland Security (DHS) or its predecessor agency, during orientation sessions as a condition of employment.  So for example, employees attesting to be a “lawful permanent resident” or “alien authorized to work” would be required to present an original “visa” or “work permit” for inspection. Note: it appears that UCSD viewed the I-551 permanent resident card as a form of visa or work permit (even though it’s neither). The results, according to the OSC’s tally, show a very high number of List A documents being recorded. Specifically, from January 2006 to January 2011, 266 of 267 non-citizen new hires and 259 of 260 lawful permanent resident new hires presented a List A document during the I-9 process. Meanwhile, UCSD Medical allegedly followed the correct procedure with the large majority of US citizens hired, allowing them to produce any acceptable document.

According to the complaint, if a non-citizen presented a List B document (such as a Driver’s License) and List C (such as a Social Security Card) during orientation, UCSD Medical would subsequently request that they produce a DHS-issued List A document and then attempt to “fix” the I-9 in various ways. For example, UCSD Medical would either (1) record the List A document together with the List B and List C documents, (2) record the List A document and cross out the information for the List B and List C documents, or (3) destroy the Form I-9 containing information for the List B and List C document and instead complete a new Form I-9 to record only the List A document. It’s not clear from the complaint how these decisions were made, but it must have resulted in some very interesting looking I-9 forms.

The Reverification Process – Be Careful of Payroll Systems

According to the complaint, UCSD recorded List A document expiration dates for non-citizens in their personnel payroll system in order to timely conduct reverification when those documents expired. Unfortunately, however, the system apparently did not distinguish between those employees who should be reverified (e.g., those with an expiring I-766 document among others) versus those employees who should not be reverified (lawful permanent residents). Indeed, the facts showed that UCSD routinely reverified lawful permanent residents by requiring an unexpired Form I-551 to be presented. Moreover, according to the complaint, UCSD Medical’s I-9 reverification policy actually required that all non-citizen employees with expiring “visas” and “work permits” (which again, included I-551 documents) to present new documentation or risk termination.

So I asked for more documents. What’s the big deal?

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. The following prohibited practices constitute what is officially known as “document abuse” (despite the fact that no documents are in fact actually harmed):

  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.

In the case at hand, it appears that UCSD Medical ran afoul of the first, second and fourth prohibited practices listed above by requesting certain employees (non-citizens) to produce more documents than required in some instances and specific documents issued by the Department of Homeland Security in others, while a different (and proper) procedure was followed for US citizens.

Is DOJ now on the I-9 Warpath?

This week’s lawsuit is just one in a series of recent enforcement actions brought by the Department of Justice against employers that engage in document abuse. As we have seen this year, OSC vigorously investigates and prosecutes such claims of discrimination, and employers found to be engaging in discriminatory activity may be required to pay civil penalties and any appropriate back pay to injured parties. Healthcare employers, such as UCSD Medical Center, 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.

Lessons Learned

When reviewing or evaluating your I-9 (and E-Verify) compliance program, it’s essential that you examine all of the various hiring policies and practices in place. This will most likely include correct I-9 completion, reviewing documents, dealing with E-Verify TNCs, performing reverifications, retention requirements, and overall hiring policies/procedures to avoid employee discrimination. While you’re doing so, you’ll also need the proper tools and resources. Here are three essential tips to stay on the good side of the OSC:

  1. Attend one of OSC’s recently announced webinars. Employers/HR professionals can join OSC’s monthly employer track webinar to learn all about the OSC’s “Do’s and Don’ts” related to I-9 compliance. For more information, visit the OSC’s website here.
  2. Proactively discuss I-9 compliance with experienced legal counsel and implement training programs on proper I-9 procedures to avoid these types of immigration-related unfair employment practices.  Experienced immigration counsel can also walk you through those tricky gray areas, such as responding to No-Match letters or drafting employment ads.
  3. Avoid using simple payroll programs to manage reverifications or electronically complete I-9 forms. Instead, follow the leaders and invest in an Electronic I-9 and E-Verify program which has been designed specifically by attorneys to handle all of these complex rules. A well designed system will not only ensure proper completion and reverification but also prevent over-documentation and other prohibited practices which can sometimes lead to discrimination.

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Human Resources Today