The Immigration and Nationality Act (INA) prohibits covered employers from intentionally discriminating against applicants and employees with respect to hiring and firing. Employers cannot impose different or greater employment eligibility verification standards on non-citizen authorized workers than on U.S. citizens.The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the Civil Rights Division of the Department of Justice has enforcement authority over claims of citizenship or immigration status discrimination and document abuse filed against employers with at least four employees under the INA. OSC shares jurisdiction over national origin discrimination claims with the U.S. Equal Employment Opportunity Commission (EEOC).
OSC has been filing complaints alleging pattern and practice violations against employers more and more. It is even using individual document abuse complaints as a basis for conducting wall-to-wall investigations of employers’ Form I-9 and E-Verify practices and procedures. Further, when employers refuse to cooperate voluntarily or otherwise respond to an administrative subpoena for production of the employer’s I-9s and E-Verify records, OSC has succeeded in obtaining authorization to pursue judicial enforcement in federal court.
OSC’s aggressiveness stems from a favorable decision from the Office of the Chief Administrative Hearing Officer (OCAHO) in U.S. v. Mar-Jac Poultry, Inc., 10 OCAHO 1148 (Mar. 15, 2012). The government alleged that the employer required all newly hired non-U.S. citizens to present documents issued by the Department of Homeland Security in order to secure their jobs, but it did not require U.S. citizens to show any specific documentation. The employer argued that OSC had failed to state a claim under the facial plausibility standard articulated by the U.S. Supreme Court. The OCAHO administrative law judge held that at the pleading stage, OSC was not required to plead any facts demonstrating that class members were work-authorized at the time of the employer’s alleged discriminatory acts, nor was OSC required to plead facts demonstrating that any class members suffered any tangible employment action. The ALJ also found the INA gives OSC the authority to broaden the scope of an existing investigation beyond the allegations in a particular charge on its own initiative where it believes a pattern or practice of discrimination exists. Thus, the decision opened up employers to wideranging OSC investigations.
Alleged violations can mean settlements or lawsuits with substantial civil penalties assessed on the employer, back pay awards for discrimination victims, hiring orders, or the requirement that an employer end discriminatory practices, ensure compliance with the anti-discrimination provision, and adhere to training, monitoring, and reporting obligations.
To lower the risk of a violation, make routine and ongoing, privileged internal audits to ensure that all hiring policies and procedures are compliant. Promptly correct any errors discovered, documenting the corrective action in case of future government audit or investigation. If an employer becomes a target for an I-9 audit or an OSC investigation, it should consult appropriate immigration counsel.