Much of the focus regarding employee verification compliance centers on the mechanics of I-9 completion and the possibility of high civil penalties for noncompliance. However, as employers strive to ensure compliance with employment verification laws, they must also ensure that they are not discriminating against individuals who are authorized to work. It is important to keep in mind that while Immigration and Customs Enforcement and the typical I-9 audit focus on possible violations under the Immigration and Nationality Act (INA) § 274A, the employer must still balance these documentation requirements with the Anti-Discrimination and Unfair Immigration-Related Employment Practices which fall under INA § 274B.
A North Carolina company has found how difficult it can be to strike the proper balance between adhering to employment verification laws regarding I-9 completion and avoiding the violation of the Immigration and Nationality Act’s anti-discrimination provisions. On November 30, 2012, the U.S. Department of Justice announced that it reached a settlement agreement with Gamewell Mechanical, Inc., a Salisbury, N.C.-based subsidiary of Woodfin Heating, Inc., resolving claims that the company violated the anti-discrimination provision of the INA when it terminated three employees it incorrectly assumed were undocumented foreign nationals. In fact, the employees were U.S. citizens.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) began to investigate the company when a charge of discrimination was filed by one of the three terminated employees who were U.S. citizens. The OSC enforces the anti-discrimination provision (§ 274B) of the INA, 8 U.S.C. § 1324b. This law prohibits:
- citizenship status discrimination in hiring, firing, or recruitment or referral for a fee,
- national origin discrimination in hiring, firing, or recruitment or referral for a fee,
- document abuse (unfair documentary practices during the employment eligibility verification, Form I-9, process), and
- retaliation or intimidation.
The investigation revealed that Gamewell officials had received information that six other workers were undocumented foreign nationals and incorrectly assumed the three U.S. citizens were similarly not authorized to work in the United States. In the settlement agreement, Gamewell agreed to pay back wages of $10,560 and $9,600 in federal penalties. In addition, it will train its human resources staff to avoid discrimination in the employment verification process. It also will be subject to compliance monitoring by federal officials and reporting requirements for 18 months.
Violations of § 274B can expose employers to civil penalties ranging from $100-$1,000 per violation. In addition, other penalties can include:
- An order to cease and desist the prohibited practice and engage in one or more corrective action
- A requirement to hire the injured individuals
- A requirement to pay up to two years of back pay for the time prior to the date the complaint was filed with OSC
- A requirement to post notices about employees’ rights
- A requirement to educate personnel involved in hiring
- An order to remove false performance reviews
- A requirement to compile for government review information on all applicants for job openings up to a three-year period; and
- A requirement to pay the complainant’s attorney’s fees
Employers should consider making the Anti-Discriminatory and Unfair Immigration-Related Employment Practices an integral part of their compliance audit, whether it is conducted by internal personnel or external counsel. The Practices should be included in any training program involving an employer’s hiring practice, as well as the subject of periodic review.