November 6, 2011, marked the 25th anniversary of the passage of the Immigration Reform and Control Act, which created the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). To mark the occasion, OSC issued a commemorative newsletter featuring OSC’s enforcement, policy, and outreach trends and antidiscrimination efforts. Among other things, the newsletter notes that in 2011, OSC collected over $735,000 in civil penalties from employers. Fiscal year 2011 included OSC’s largest civil penalty amount to date, $290,400.

OSC said its enforcement work has been bolstered by a rise in referrals of potential discrimination from entities such as the U.S. Department of Labor (DOL), legal aid bureaus, and immigrant advocacy organizations. For example, OSC has received a number of referrals from DOL regarding agricultural employers believed to have a preference for hiring H-2A visa holders over domestic workers. Recently, OSC has renewed its dialogue with the Equal Employment Opportunity Commission and with DOL’s Office of Federal Contract Compliance Programs to ensure that appropriate referrals are made in a timely fashion. It has also initiated discussions with DOL’s Wage and Hour Division to identify appropriate cross-agency referrals.

OSC noted that its settlement agreements now routinely include back pay for identified economic victims along with training and monitoring. OSC has also pursued a rising number of pattern or practice claims, including claims involving citizenship status discrimination and “document abuse” (discriminatory employment eligibility verification practices). OSC’s recent settlements have involved the healthcare field and institutions of higher education more often than in the past.

Recognizing the need for closer interagency collaboration, on March 17, 2010, OSC and USCIS signed a Memorandum of Agreement providing for enhanced information-sharing and case referrals regarding the misuse, abuse, or fraudulent use of E-Verify and allegations of E-Verify-related employment discrimination. Through this information-sharing agreement, OSC has obtained E-Verify transactional data to investigate allegations of discrimination in the use of E-Verify.