Legal Updates

Recent Settlements Underscore Risks Of Discriminatory Form I-9 Practices

The U.S. Department of Justice’s (“DOJ”) Office of Special Counsel (“OSC”) recently announced settlement agreements with two employers – a large public school system and a small business – regarding allegations that they engaged in discriminatory practices during the employment verification, or Form I-9, process. As part of the settlements, both employers agreed to pay hefty fines.

These costly settlements serve as an important reminder to all employers to review their own Form I-9 processes to ensure that their verification procedures are not discriminatory.

Background: Form I-9 Requirements

Under the Immigration Reform and Control Act of 1986 (“IRCA”), employers are prohibited from knowingly hiring workers who are not authorized to work in the United States. Therefore, for each employee hired after November 6, 1986, employers must complete a Form I-9 to establish the individual’s identity and right to work in the United States.

As part of the I-9 verification process, employers must examine original documentation, such as passports, driver’s licenses, or Social Security cards (among other acceptable documents). In certain cases, employers are also required to re-verify an individual’s employment eligibility when authorization documents have expired.

At the same time, however, the Immigration and Nationality Act (“INA”) prohibits employers from carrying out the Form I-9 process in a discriminatory manner, such as on the basis of citizenship, immigration status or national origin. The recent settlements announced by the OSC serve as examples of unlawful discriminatory practices that may prove costly for employers.

Settlements

In two recent, similar investigations, the OSC found that Sunny Grove Landscaping & Nursery (“Sunny Grove”) and the Miami-Dade County Public Schools had discriminated against non-U.S. citizens by requiring them to produce green cards when completing Form I-9, while U.S. citizens could choose any acceptable form of documentation to prove their employment authorization.

To resolve the matter, Sunny Grove agreed to pay $7,500 in civil penalties and undergo DOJ training on the anti-discrimination provisions of the INA. The Miami-Dade County Public Schools agreed to even more severe sanctions, including paying a $90,000 civil penalty, setting up a $125,000 fund to compensate employees for lost wages, and undergoing compliance monitoring and training for three years.

As these settlements highlight, under the Form I-9 rules, lawful permanent U.S. residents cannot be required to show their green cards but must be permitted to choose any valid documentation to establish their employment authorization. Employers that treat foreign national workers differently from U.S. citizens in conducting the employment authorization process act at their peril.

Other Discriminatory Practices

Form I-9 rules also prohibit employers from requiring re-authorization of lawful permanent residents once their green cards expire. Lawful permanent residents are permitted to live and work in the U.S. indefinitely, and the expiration of a green card does not mean that an individual’s employment authorization has expired. Therefore, if an employee’s green card is valid at the time the Form I-9 is completed, the employer should not require re-verification when it expires.

Employers are also prohibited from engaging in certain other practices in the course of the I-9 verification process, including document abuse – i.e., over-documenting, or asking employees for more than the required documentation.

Recommendations

In light of these recent I-9 settlements, we recommend that employers:

• Review their Form I-9 policies and practices to ensure compliance with all requirements. For example, employers should confirm that they do not re-verify green card holders or ask individuals for specific documents when completing Form I-9;
• Train employees responsible for conducting the Form I-9 process on the anti-discrimination provisions of the INA, including when an employment authorization document should be re-verified; and
• Consult experienced immigration counsel with any questions about the Form I-9 verification process.

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Please feel free to contact us if you have questions about these recent I-9 settlements or the employment verification process generally. We regularly counsel employers on these issues and would be happy to help.