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OSC Settles Numerous Immigration-Related Discrimination Claims Arising from Improper I-9 Practices

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), a division of the U.S. Department of Justice, has settled 14 cases in 2014, where employers were alleged to have engaged in discrimination against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).

The OSC is responsible for enforcing the antidiscrimination provision of the INA, which prohibits citizenship and national origin status discrimination in hiring, firing and recruitment or referral for a fee, as well as document abuse – discriminatory I-9 form and E-Verify practices.  The INA’s anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin.

In the most recent OSC settlement, Continental Airlines was alleged to have requested lawful permanent resident employees, but not U.S. citizen employees, to complete additional I-9 forms and provide additional proof of employment eligibility after hire. This investigation was initiated based on a telephone call to OSC’s hotline.

In Commercial Cleaning Systems, the OSC’s investigation found the janitorial services company required work-authorized non-U.S. citizens to present specific documentation issued by U.S. Department of Homeland Security (DHS) in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation.  The OSC made similar findings in Select Staffing, SK Food Group Inc., Master Klean Janitorial and SD Staffing LLC.

In Potter Concrete, the parties settled based on the same company practice subjecting non-U.S. citizen new hires to unlawful demands for specific documentation issued by the DHS while U.S. citizens were permitted to present their choice of documentation. However, the investigation also revealed Potter Concrete selectively utilized E-Verify to confirm the employment eligibility of individuals they knew or believed to be non-U.S. citizens or foreign born.

In Mexico Foods LLC, a/k/a El Rancho Corp., the OSC found El Rancho required employees, who were lawful permanent residents (LPRs), to present a new employment eligibility document when their Permanent Resident cards expired. The law prohibits this practice because LPRs have permanent work authorization in the United States, even after their Permanent Resident cards expire.  The investigation also revealed El Rancho routinely requested a specific work authorization document from LPRs during the initial employment eligibility verification process even though, under the law, employees are allowed to choose what documents to present.  OSC found El Rancho’s discriminatory practices were based on employees’ citizenship status.  The OSC made similar findings in Culinaire International and Isabella Geriatric Center (“IGC”).

In IGC, the investigation also revealed that that the company required LPRs to provide proof of U.S. citizenship if they became naturalized citizens.   This violates the INA.

In Patriot Staffing & Services, LLC, the OSC’s investigation found the company rejected the Charging Party’s Employment Authorization Document because it had an upcoming expiration date. This is a clear violation of the INA.

In Travel Management Company, the investigation concluded the company had a U.S. citizenship requirement in its job postings for commercial pilot positions, despite the fact that no law, regulation, executive order or government contract authorized the company to restrict employment in this manner.   The investigation further established that non-U.S. citizens who applied for the position were eliminated from consideration on the basis of their citizenship status.   The OSC reached a similar settlement in City of Waterloo, Iowa.

Motorcoach Class A Transportation, Inc. (MCA Transportation) resolved an allegation that the company committed an unfair documentary practice against an asylee by requesting more or different documents than necessary for the Form I-9 on the basis of citizenship status.

Many of these cases originated as referrals from the U.S. Citizenship and Immigration Services (USCIS) based upon review of E-Verify data by the Monitoring and Compliance (M&C) Branch of the USCIS.

Under the settlement agreements, the employers agreed to the following monetary terms:

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In addition, each of the companies must revise its employment eligibility verification policies and/or hiring procedures, if necessary, undergo training on the anti-discrimination provision of the INA and are subject to monitoring of its employment eligibility verification practices for one year to three years.

Employers need to be aware that it cannot use separate standards in documentation from U.S. citizens and non- U.S. citizens. If one engages in such a practice, it is discriminatory and someone may file a complaint with the OSC, which could lead to costly civil penalties and back pay.  As these settlements demonstrate, the OSC is actively enforcing the anti-discrimination provisions of the INA. Furthermore, the size of the civil penalties continues to dramatically increase.

Human Resources Today