The Department of Justice (DOJ), through its Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), recently settled two claims alleging discrimination, based on unfair documentary practices during the employment verification process, against employment-authorized workers by their respective employers. Commonly referred to as “document abuse,” the anti-discrimination provision of the Immigration and Nationality Act (INA), among other things, prohibits employers from requesting more or different documents than required to verify employment eligibility, rejecting reasonably genuine-looking documents, or specifying certain documents over others with the purpose of discriminating on the basis of citizenship status or national origin.
Claim 1: Requiring an EAD for I-9 Completion
In this matter, the DOJ announced that it had reached an agreement with the company resolving claims that it violated the INA’s anti-discrimination provision by engaging in discriminatory documentary practices during the employment eligibility verification process. Specifically, through its investigations, the DOJ confirmed the allegations, made by a work-authorized individual with refugee status, that the employing company committed document abuse when it rejected the employee’s valid driver’s license and unrestricted Social Security card and required him to produce a Department of Homeland Security Employment Authorization Document (EAD) at both initial hire and when subsequently re-verifying the individual’s employment authorization. The DOJ investigation also revealed that the company’s documentary demands were based on the individual’s status as a non-U.S. citizen.
Under the terms of the settlement agreement, the company agreed to pay more than $9,000 in back pay to the individual, as well as $1,200 in civil penalties to the United States. The company is also required to undergo training on the INA anti-discrimination provision and to have its employment eligibility verification practices monitored for one year.
Claim 2: Requiring a Green Card for I-9 Completion
Likewise, in this matter, the DOJ settled a claim with the company over allegations that it violated the INA’s anti-discrimination provision by rejecting a work-authorized individual’s Department of Homeland Security-issued EAD. In its place, the employer required the individual to produce a Permanent Resident Card (“green card”) as a condition of employment. Following the rejection of her EAD, the individual in question was unable to work at the company since she was merely employment-authorized as an applicant for permanent residence, but not yet a green card holder.
Under the terms of the settlement, the employing entity agreed to pay more than $1,700 in back pay to the individual and $280 in civil penalties to the United States. In addition, the company must participate in DOJ training on the INA anti-discrimination provision and be subject to monitoring of its employment eligibility verification practices for one year.
OSC vigorously investigates and prosecutes claims of discrimination and, as these cases illustrate, employers found to be engaging in discriminatory activity may be required to pay civil penalties and back pay to injured parties. When reviewing or assessing compliance programs, it is critical that companies examine their hiring policies and practices to avoid discrimination and proactively discuss compliance with experienced legal counsel.