Today, the Justice Department announced that it has filed a lawsuit against Farmland Foods, Inc., a major producer of pork products based in Kansas. The lawsuit, which will be heard by an Administrative Law Judge, alleges that the employer engaged in unlawful discriminatory acts by requiring foreign born and non-citizen employees to provide additional documentation of employment authorization beyond what was required by law and the documents required from U.S. citizens. While we have not yet heard the full facts or Farmland Food's position, the lawsuit highlights the fine line employers must walk to satisfy both the obligation to verify employment eligibility for all employees, and avoid unfair discrimination against employees born in other countries or with foreign sounding names.

For instance, employers must accept documents that reasonably look genuine while at the same time they are required to reject clearly fraudulent documents. The difficulty often becomes determining whether the document is genuine or fraudulent. The stakes are increased, however, because if a document is satisfactory, the employer commits an unfair discriminatory act by requesting different or additional documentation. The current political environment resulting from the passage by several states of severe penalties and increased enforcement of the immigration laws prohibiting employment of undocumented workers has created hyper-sensitivity to the issue. It is not unusual for employers to become more careful, and request additional documentation from employees to resolve any uncertainty, whether real or perceived. However, the Immigration and Nationality Act also provides penalties for unfair discrimination, a provision now readily apparent to Farmland Foods. This lawsuit highlights the need to train human resources personnel in the minutiae of documentation to satisfy the requirements of the employment verification process without crossing the line to unfair discriminatory practices.