On August 22, Farmland Foods, a prominent pork producer in Missouri agreed to pay $290,400 in civil penalties for discrimination in its I-9 process.  This is the highest civil penalty charged by the Department of Justice Civil Rights Division (DOJ) to date in an immigration-related discrimination investigation.  In addition to the fine, Farmland Foods will be subjected to I-9 process training, auditing and monitoring by both the DOJ and the Immigration and Customs Enforcement agency (ICE) for the foreseeable future.

During its investigation the DOJ Found that Farmland had engaged in a pattern and practice of discrimination by enforcing unnecessary and excessive documentary requirements regarding work eligibility for noncitizens or foreign born citizens of the United States, while not imposing nearly as strict a policy on U.S. born workers.  For noncitizens, Farmland required presentation of a permanent resident card or employment authorization document, rather than allow the employees to select from the list of acceptable documents on page 2 of the I-9 form. The company also required documentation such as social security cards on many occasions.  Foreign-born, naturalized American citizens had to present evidence of their citizenship, such as naturalization certificates or United States passports, even in cases in which these individuals could prove their authority to work through other documentation.

The form of  I-9 discrimination Farmland engaged in is called "Document Abuse." This violation may occur in  several ways: Specifically, an employer may request that employees provide more documents than those required by Form I-9 to establish a person’s identity and work authorization; an employer may require specific documentation, such as a permanent residence card, as a prerequisite to establishing identity or work authorization; an employer may reject other documentation which would legitimize an employee’s identity or employment authorization status; and/or the employer in question may treat certain groups of people differently in requiring some who may look or sound “foreign” to provide certain documents to prove identity or work authorization while not requiring the same of other persons outside of the “foreign-looking” or “foreign-sounding” group.  

The lesson to be learned from the Farmland controversy is that sometimes employers can go too far in trying to ensure that their workforce is legal,  causing them to  run afoul of anti-discrimination provisions.  Employers must take careful, thorough steps to avoid patterns and practices of employment discrimination, including  extensive and regular training for personnel involved in the I-9 process.  The bottom line to avoiding document abuse:  Give an employee page 2 of the I-9 form and allow the employee to chose which documents to present. If the documents are insufficient return them to the employee with page 2 and explain why the documents  do not meet the criteria and ask them to return with something else on the list. If  the employer is unsure about a document, do not reject it, ask counsel or a more experienced human resources person, or even consult the USCIS Employer’s Handbook, but do not reject documents without at least first considering what they are and where they may fit into Section 2 of the I-9 form.