The Department of Justice has announced a settlement agreement with Hoover Inc., the iconic and well-known manufacturer of vacuum cleaners, to resolve allegations that Hoover engaged in a pattern or practice of employment discrimination by imposing unnecessary and discriminatory hurdles in the I-9 process upon lawful permanent residents (green card holders). According to the DOJ’s press release, Hoover required all permanent residents who presented a permanent resident card (I-551) for I-9 purposes to produce a new green card when the original document expired. In contrast, Hoover did not request new passports from U.S. citizen workers when such documents expired. Under the terms of the settlement, Hoover has agreed to pay $10,200 in civil penalties, train its human resources personnel about proper I-9 procedure, and provide periodic reports to the DOJ for one year.

DOJ Cracks the Whip

This week’s settlement is just one in a series of recent enforcement actions brought by the Department of Justice against employers that engage in unfair documentary practices (also known as document abuse) which occurs when employers treat new hires or existing employees differently on the basis of national origin or citizenship status in the I-9 process. In addition to Hoover, the DOJ has also initiated such investigations against other high-profile organizations including Macy’s, Morton’s Steakhouse, and the John Jay College of Criminal Justice. Document abuse covers four types of prohibited practice:

1. Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;

2. Improperly requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;

3. Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and

4. Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to produce particular documents the employer does not require other employees to produce.

The Trouble with Green Cards

In this particular instance, Hoover’s I-9 policies ran afoul of the first and fourth prohibited practices listed above by requesting certain employees (green card holders) to produce more documentation than was required. The DOJ correctly noted that permanent residents, like US citizens, are work authorized, regardless of the expiration of their documentation. This same admonition is also listed on the M-274 employer handbook (page 36, Q39) which states: You may not reverify an expired U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired.

The Trouble with the I-9 Form

As our guest blogger, Josie Gonzalez, noted last week, the I-9 form itself is partly to blame for a lot of the employer confusion and the resulting practices that ensue. For example, how are employers (and more specifically their designated HR reps) supposed to know that green cards should not be reverified when they expire? One would think such an instruction would be clearly printed on the I-9 form (or at least the instructions), and yet we have to turn to the 65-page M-274 to find the right answer. While it may be impossible to include all of the various (and often confusing) I-9 rules on the form itself, we can only hope that USCIS takes these common mistakes and confusions into account when redesigning the form.

In the meantime, employers should proactively discuss I-9 compliance with experienced legal counsel and implement training programs on proper I-9 procedures to avoid these types of immigration-related unfair employment practices. In addition, employers should strongly consider adopting an electronic I-9 system which can prevent document abuse (e.g., if employee presents I-551, employer cannot reverify when the document expires). While this system alone will not necessarily prevent discrimination, it can be used as a great educational tool along with comprehensive training and policies.

For More Information