United States: Justice Department Targets Immigration-Related Employment Discrimination

United States: Justice Department Targets Immigration Related Employment Discrimination

A Department of Justice lawsuit alleges that an employer discriminated against foreign-born U.S. citizen and non-citizen employees by requiring them to provide more Form I-9 employment eligibility verification documentation than federal regulations require.

In a lawsuit filed earlier this week, the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has alleged that Farmland Foods Inc., a major U.S. producer, engaged in a pattern or practice of discrimination by requiring non-U.S. citizens and even foreign-born U.S. citizens to provide more Form I-9 employment eligibility verification documentation than federal regulations require. This practice is called “document abuse.” It is deemed discriminatory and is expressly prohibited by U.S. immigration law.

The suit is the latest in OSC’s heightened enforcement efforts against employers who allegedly discriminate against employees or applicants on the basis of citizenship status or who “overdocument” certain employees because of real or perceived citizenship status. In August 2010, OSC filed suit against an Arizona community college for similar documentary practices, and ultimately settled for $45,760 in civil penalties and $22,123 in back wages. Previously, OSC settled with a charitable hospital for $257,000, also for alleged document abuse.

What This Means for Employers

The recent increase in OSC enforcement serves as a reminder that employers must provide training on immigration-related employment discrimination just as they do equal employment opportunity (EEO) training. Guarding against immigration-related discrimination is an important part of overall I-9 compliance. Employers must learn to navigate their verification and non-discrimination obligations by adhering to the regulations governing both areas.

As a general rule, your organization must treat all job applicants and employees exactly the same way, and must ensure strong compliance with I-9 regulations without going beyond them. Human resources staff also must be especially cautious when dealing with members of the protected class under immigration law, which comprises U.S. citizens, lawful permanent residents (including temporary and conditional residents), refugees and asylees.

Employment verification is one area where exceeding the legal requirements leads to more, not fewer, liabilities. There will be times when it is not entirely clear how an employer is to navigate between eligibility verification and antidiscrimination concerns. When questions arise, contact your designated Fragomen attorney or e-mail us at compliance@fragomen.com before implementing any internal protocol dealing with employment eligibility verification and certainly before taking any adverse action against employees or job applicants.

Source: Fragomen