Retailer Macy’s entered into a settlement agreement with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) last June for “unfair documentary practices” during the I-9 Form employment eligibility re-verification process. The OSC is responsible for enforcing anti-discrimination provisions of the Immigration and Nationality Act prohibiting citizenship and national origin discrimination against employers when hiring and firing.

Unfair documentary practices include treating employees differently by requiring more or different I-9 documents or limiting an employee’s choice of I-9 documents as part of the employee’s completion of the I-9 Form.  Macy’s agreed to pay a civil penalty of $175,000, create a back pay fund of $100,000 to compensate individuals who suffered economic damages that included suspension, termination or other periods of lost work, restore seniority to those individuals who suffered economic damage as a result, and provide training to its human resources staff on anti-discrimination.

Electronic I-9 providers can contribute to unlawful I-9 policies by limiting the employee’s choice of documents to present based upon the immigration status the employee has selected in Section 1 of the I-9.  Therefore, it is not only critical that the employer follow I-9 instructions and allow employees to choose their documentation to show identity and employment eligibility, but if it uses an outside electronic provider, it must ensure that the provider also permits the employees to select from the entire list of acceptable documentation on the I-9. 

The OSC also took action recently against Forever 21, another popular retailer.  The company was fined and had to pay an employee back-pay for requiring him to present a green card during the I-9 process. SOS Employment Group was also fined and had to pay back-pay recently for rejecting an unrestricted social security card to prove employment authorization and valid driver’s license to prove identity. These three OSC-generated cases signify the importance of employers properly training employees who review documentation supplied by the employee during the I-9 process.

The OSC has proactively issued several Technical Assistance Letters to advise employers in the following scenarios:

  • It is not permissible for a general contractor to re-verify I-9 documents presented by the employee of a sub-contractor at any time during the contractor-subcontractor relationship.  
  • An employer cannot provide a payroll company with its employees’ I-9 forms to produce “pay cards” as this is not a use related to enforcement of the Immigration and Nationality Act. 
  • Print-outs of E-Verify results should be only available to the employer’s authorized employee performing the E-Verify functions indentified in the Memorandum of Understanding entered into between the employer, the Social Security Administration, and the Department of Homeland Security.