The U.S. Department of Justice this week announced a settlement with Catholic Healthcare West and two subsidiaries over alleged document abuse violations related to hiring practices. The Justice Department determined that the employer violated the discrimination provisions of the Immigration Act by permitting native-born U.S. citizens to choose which documents to provide but demanding additional documents from non-citizens and naturalized citizens. While the law requires the employer to verify employment authorization, the employer may not discriminate against non-citizens or naturalized citizens. The Justice Department alleged that by requiring additional documentation, the employer had crossed the line from verification to discrimination.

The settlement included several provisions. Catholic Healthcare West agreed to pay $1,000 in back pay and offer employment to the individual who brought the claim and pay a $257,000 civil penalty to the government. In addition, there were strict provisions for further monitoring of the employer's practices and records, with frequent reports to the Government over the next several years. The key factor cited to justify the assessment of damages and the fine was that the employee was required to miss work to get the additional documentation.

This settlement highlights the fine line that employers must walk on I-9 verification issues. We have seen a steady increase over the past few years in the fines and penalties assessed against employers for the failure to properly verify new employees' authorization to accept employment. This penalty was assessed against an employer who requested too many documents as part of that verification process. The very expensive lesson that Catholic Healthcare West learned was that employers must verify each new employees' employment authorization but must be very careful to avoid a request for too much documentation, which will be considered unlawful discrimination.