Large Staffing Company Agrees to Pay $135,000 for I-9 Related Discrimination
This may come as a surprise to some, but one of more pervasive mistakes in I-9 compliance has nothing to do with completing the form itself. For sure, the Form I-9 is a breeding ground for paperwork blunders of all shapes and sizes. And employers need to make sure they are completing all required fields on the I-9 in a timely fashion.
But as it turns out, employers need to be equally concerned about going too far in their I-9 verification process, especially when it leads to the unfair treatment of an employee based on their citizenship, immigration status, or national origin.
During the past few years, the Department of Justice, through its Immigrant and Employee Rights Section (IER), has announced numerous settlement agreements where employers have treated workers differently during the I-9 process – and in most (if not all) of the cases, the alleged discrimination involved the hiring and reverification of lawful permanent residents.
IER’s latest settlement (announced last Thursday) involves Randstad North America Inc., a global staffing agency with offices throughout the US. In May 2018, IER initiated an investigation into Randstad’s hiring practices after receiving a complaint from a lawful permanent resident who had been denied employment with the company on 2 separate occasions.
Based on its investigation, IER determined that Randstad’s South Plainfield, New Jersey location had repeatedly discriminated against lawful permanent residents by requiring them to present specific documents, such as Permanent Resident Cards, even when they had presented sufficient documentation to prove their work authorization. Meanwhile, the company did not have a practice of requesting specific documents from US citizens (thus forming the basis for the discrimination claim).
Green Card Confusion
As many employers are aware, lawful permanent residents (like US citizens) are eligible to receive unrestricted social security cards, and many will choose to present the social security card along with a driver’s license or other List B document. Requiring these individuals to present a specific document (even if done innocently or by accident) is considered an unfair documentary practice, which can subject an employer to penalties and fines.
And that’s exactly what happened here as well – according to the settlement agreement, Randstad has agreed to pay a civil penalty of $135,000 for its unlawful document requests to lawful permanent residents and provide $909 in back pay to the worker who lost wages when she was turned away from the job for the same reason. Additionally, Randstad has agreed to train its relevant South Plainfield location employees about I-9 related discrimination, including using a training assessment tool and attending an IER webinar.
This latest settlement agreement from IER serves as an important reminder for employers across the US: while you are charged (some say “deputized”) to ensure you hire and employ a legal workforce, you must also take care to avoid discriminating against any work-authorized individual based on the person’s citizenship, immigration status, or national origin.
Below is quick recap of an employer’s obligations with respect to reviewing documents, along with some best practices for revamping your compliance program.
I-9 Discrimination Basics
IER enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA) through a variety of activities, including broad employer investigations, hotline interventions (for one-off complaints), and various outreach activities, which include in-person and online trainings and a wide variety of educational materials.
One of the most frequently investigated areas in the I-9 context concerns “unfair documentary practices” (formerly known as document abuse), which occurs when an employer creates different I-9 document rules and requirements for employees based on their protected class. Below are four examples of prohibited I-9 practices:
- Requesting that employees produce more documents than are required by the Form I-9 to establish the employee’s identity and employment authorization;
- Requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;
- Rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and
- Treating groups of applicants differently when completing the 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 each one of the cases above, the employer must also have an “intent to discriminate” – an important requirement which was added to the INA in 1996. However, it’s important to note that in 2016 IER clarified the “intent” equation in a final rule where they indicated that discrimination means the act of intentionally treating an individual differently based on national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether it is because of animus or hostility. Practically speaking, this means that an employer could engage in unfair documentary practices based simply upon their misunderstanding of I-9 requirements and procedures (such as demanding green cards from lawful permanent residents or re-verifying green cards when they expire).
Fortunately, there are proactive steps an employer can take to lessen the likelihood of discrimination while still maintaining compliance with Form I-9 rules. Here are three strategies to consider:
(1) Perform a top to bottom evaluation of your current I-9 hiring processes and procedures, paying special attention to how you typically inform employees of the documents required for I-9 verification. In doing so, you’ll also want to review your I-9 forms and look for any instances where you may have over-documented in section 2 or employed any special procedures for non-citizen employees.
(2) Work with experienced immigration counsel to develop policies, documentation, and training – the 3 best ways to ensure that your organization is on the same page when it comes to I-9 and E-Verify processing. Counsel can also help you resolve any past I-9 or E-Verify compliance failures and provide advice with respect to any alleged claims of discrimination.
(3) Begin using a smart electronic I-9 and E-Verify software solution, which helps your hiring and HR managers comply with the often confusing (and conflicting) requirements of the law. A well-designed system will alleviate many I-9 and E-Verify concerns by preventing mistakes, standardizing practices, and guiding employers on the proper procedure for requesting I-9 documentation. Be careful though because not all I-9 systems are created equally. You’ll need to make sure the system is fully compliant with the I-9 regulations and treats employees consistently, regardless of their status.