OSC Enforcement of I-9 Laws on the Rise

[Editor’s Note: today’s blog is courtesy of Nici Kersey of Seyfarth Shaw LLP.] For most employers, it has been clear for some time that U.S. Immigration and Customs Enforcement, (ICE, a division of the Department of Homeland Security or DHS) and FDNS (U.S. Citizenship and Immigration Services’ Fraud Detection and National Security Office) have placed a renewed emphasis on the enforcement of immigration laws and regulations, initiating investigations, withdrawing work permits, and seeking fines and criminal sanctions against employers who violate those laws.  It now appears that another agency has renewed its focus on enforcement of the I-9 laws.  This time, the focus is on the anti-discrimination provisions, and the agency enforcing those provisions is the OSC. The Office of Special Counsel for Immigration Related Unfair Employment Practices(OSC)[1], part of the U.S. Department of Justice’s Civil Rights Division, announced at the beginning of the month that it entered into a settlement agreement with Macy’s after one of its stores allegedly discharged an employee after that employee’s permanent resident card expired.  (Under the I-9 laws, Macy’s should not have requested or required additional evidence of employment authorization after expiration of the green card.)  The announcement is availablehere, and the settlement agreement is available here. Approximately one week after the Macy’s announcement, the OSC issued a press release to publicize its filing of a lawsuit against a rug manufacturer in Dalton, GA.  The complaint, available here, claims that the rug manufacturer requested that a U.S. citizen who spoke only limited English produce a green card as proof of employment authorization; when the employee indicated that he did not possess a green card, the employer allegedly indicated that, despite having already provided his driver’s license and unrestricted social security card, he must present his U.S. passport or naturalization certificate.  The complaint states that the employer withdrew the offer of employment when the prospective employee indicated that additional documentation should not be necessary.  The complaint alleges a practice of document abuse and claims that the rug manufacturer implemented a policy of requiring those employees perceived to be non-U.S. citizens to produce specific DHS-issued documents as evidence of work authorization. For more evidence that the OSC intends to increase enforcement, note that these announcements come shortly after the OSC and DHS entered into amemorandum of agreement through which DHS agreed to provide data from E-Verify to the OSC that the OSC may use to identify violations of the Immigration and Nationality Act’s anti-discrimination provisions.  (For details, see this Management Alert.) The bottom line is that employers must be aware of the increased government enforcement in this area and should act to ensure that they do not find themselves the subject of tomorrow’s headlines (or OSC press releases).  They should provide training to all employees who are involved in the hiring and onboarding processes to ensure that prohibited acts of discrimination do not occur.  While the OSC has been helpful in providing a video that employers can use for this purpose, such training is often most effective when presented as a part of a more comprehensive I-9 training program. [1] The OSC is responsible for enforcing the anti-discrimination provisions of the Immigration and Nationality Act (INA), which prohibits discrimination on the basis of national origin and citizenship status.  In the I-9 world, this means that employers must not require that an employee present more than the minimum amount of required documentation to satisfy form I-9 requirements (one document from List A or two documents – one from List B and one from List C).  Employers must also not refuse to accept documents that reasonably appear to be genuine and to relate to the employee presenting them.  Many employers may be tempted to require additional or specific documentation from employees who sound or appear to be “foreign,” due to suspicions that these individuals may not be authorized to work in the U.S.  Employers must not give in to this temptation and must apply the same I-9 rules to all employees, regardless of citizenship or national origin.