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Missouri Pork Producer Agrees to Pay the Highest Civil Penalty on Record for Discrimination during the I-9 Process

Today, the Department of Justice announced a record anti-discrimination settlement agreement with Farmland Foods, Inc. to resolve allegations that the company engaged in a pattern or practice of discrimination during the I-9 process.

According to the DOJ’s press release, Farmland, a major producer of pork products in the United States, had a practice of requiring all newly hired non-U.S. citizens and some foreign-born U.S. citizens at its Monmouth, Illinois plant to present specific and, in many cases, extra work-authorization documents beyond those required by law. Under the terms of the settlement, Farmland has agreed to pay $290,400, the highest civil penalty paid through a settlement since the INA’s anti-discrimination provision went into effect in 1986. Farmland has also agreed to train its human resources personnel about proper I-9 procedure, and provide periodic reports to the DOJ for monitoring purposes.

How Does Discrimination Occur during the I-9 Process?

When employers think about I-9 rules, the primacy focus tends to be on making sure that the form is completed properly, original documents are reviewed, and everything is retained for the right amount of time in order to avoid potential issues and fines if Immigration and Customs Enforcement I-9 decides to show up at your door. However, the other side of the I-9 “coin” is a very strong admonition (right on the top of the form) that it is “illegal to discriminate against work-authorized individuals” and “[e]mployers CANNOT specify which document(s) they will accept from an employee.” This latter offense, known as “document abuse,” can occur in any one of the following prohibited practices:

  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.

Despite this warning and the potential consequences, many employers this year have fallen prey to discrimination charges and fines as the OSC continues to aggressively pursue complaints. For a list of recent settlement agreements, make sure to visit the OSC’s settlement page and look for “document abuse.” In the meantime, let’s examine the Farmland case.

An E-Verify Case Goes Awry

According to the lawsuit filed on behalf of the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), Farmland extended a conditional offer of employment to a naturalized US citizen on December 2, 2009 and asked the new hire to complete the I-9 form.  At that time, the individual presented a driver’s license (List B) and an unrestricted social security card (List C). After the employee started orientation, Farmland (through its agent) submitted the individual to E-Verify and received a tentative nonconfirmation (TNC). Now, this is when things started to go awry.

Rather than having the employee go through the TNC process (which would have involved talking to a DHS representative or visiting SSA – actions NOT involving the employer), Farmland allegedly asked the employee to bring in her naturalization certificate and/or other documents to prove her citizenship. While it’s not clear from the complaint what happened next, one can imagine that the employee either wasn’t able to do so (and was prejudiced by this) or felt that she was being treated differently due to her citizenship or immigration status. Enter the long arm of the OSC.

Pattern or Practice Revealed

Again, according to the complaint, OSC discovered that Farmland routinely engaged in a pattern of discriminatory documentary practices in its Monmouth, Illinois plant since at least December 1, 2009. Specifically, between December 1, 2009 and January 26, 2011, the OSC alleged that Farmland required non-U.S. citizens to specifically produce a Department of Homeland Security (“DHS”)-issued “List A” document in addition to other documents as well. So for example, employees attesting to be a “lawful permanent resident” would be required to produce an I-551 permanent resident card and employees attesting to be “an alien authorized to work” would be required to produce an I-766 employment authorization document. Meanwhile, the large majority of US citizens hired were allowed to produce varied List B and List C documents without restriction.

Farmland also mandated additional work authorization documents, generally by requiring social security cards, even when employees had already produced other documents establishing their right to work.   In the case of foreign-born naturalized U.S. citizens, Farmland sometimes required evidence of citizenship, such as certificates of naturalization or U.S. passports, even when those individuals had other means of proving their work authorization. Here are the specific stats quoted by OSC with respect to Farmland’s pattern or practice violation:

  • Required 100% of non-U.S. citizens to produce a “List A”, while only 4.9% of U.S. citizens were required to do so.
  • Required 100% of non-U.S. citizens to produce identity and work authorization documents in addition to a “List A” documents during the Form I-9 Employment Eligibility Verification process, while only 1.6% of U.S. citizens were required to do so.
  • Required 88% of the non-U.S. citizen employees to produce a List A, B, and C document, while only 0.8% of the U.S. citizen employees were required to do so.

Interestingly, for the non-U.S. citizen employees, Farmland only recorded the List A document on section 2 of the Form I-9 and attached photocopies of the additional documents to the Form I-9. Thus, on surface, this would not have appeared (upon first glance) to be over-documentation. Regardless, Farmland’s demand for specific or excessive documents to establish work authorization clearly violated the anti-discrimination provision of the Immigration and Nationality Act (INA).

Lesson Learned

When reviewing or evaluating your I-9 and E-Verify compliance program, it’s essential that you take a holistic approach and examine all of the various requirements and pieces of this often confusing puzzle. This will most likely include correct I-9 completion, reviewing documents, dealing with E-Verify TNCs, performing reverifications, retention requirements, and proper 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 resources to get your I-9 and E-Verify program on track:

  1. Experienced immigration counsel – to handle all of those tricky grey areas and guide you through the process
  2. 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
  3. Electronic I-9 and E-Verify software – a well designed system will alleviate many of your I-9 concerns by preventing mistakes, centralizing your documents, and enabling proactive management going forward.

Because remember: it’s never too late to turn your I-9 operations around and prevent (or mitigate) the possibility of a DOJ settlement!

Human Resources Today