Are Employers Asking For Too Much Information From Job Candidates?
Unfair documentary practices constitute a form of unlawful discrimination
Posted on 07-17-2019, Read Time: Min
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Since President Trump took office in January of 2017, many practitioners have noted an uptick in the number of investigations launched by the Department of Justice’s Immigrant and Employee Rights Section (IER)1 into employers’ Form I-9 practices.
Among other things, IER receives and investigates discrimination charges related to so-called “unfair documentary practices” brought pursuant to the Immigration and Nationality Act (INA). “Unfair documentary practices,” as defined in the INA, simply means “request[ing] more or different documents than are required to verify employment eligibility, reject[ing] reasonably genuine-looking documents, or specify[ing] certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin.” 8 U.S.C. § 1324b.
Such unfair documentary practices constitute a form of unlawful discrimination under the INA.
One common example of an unfair documentary practice is where an employer requires a new employee to provide specific documents when completing Form I-9. Insisting on a particular document is unlawful because employees must be allowed to choose which documents on the List of Acceptable Documents (which is attached to the Form I-9) to produce. Thus, a permanent resident employee who chooses to present a driver’s license and an unrestricted social security card cannot, for example, be required to present a permanent resident card instead of or in addition to her chosen documents.
Another example of an unfair documentary practice is where an employer reverifies employees whose Forms I-9 do not have to be reverified. By way of background, employers generally must reverify an employee’s employment authorization when her employment authorization documentation expires. However, there are a couple of important exceptions to this general rule. Reverification is never required for U.S. citizens and noncitizen nationals. Additionally, employers are not allowed to reverify the following documents: U.S. passports, U.S. passport cards, Alien Registration Receipt Cards / Permanent Resident Cards (Form I-551) and List B documents.
When an employer re-verifies an individual or documents that should not be reverified, the employer may be accused of engaging in unfair documentary practices.
Employees who suspect their employer of committing unfair documentary practices may file a charge of discrimination with the IER. For employers, the most onerous aspect of an IER charge is that the IER can then open up a large-scale investigation into the employer’s Form I-9 practices if it has reason to believe that there is a pattern and practice of violations. IER investigations can be quite expensive and time consuming. Once the IER completes its investigation, it can either dismiss the charge, reach a settlement with the employer or file a complaint with an administrative law judge against the employer.
Employers found to have violated the INA’s ban on unfair documentary practices can face steep fines. In addition to non-monetary penalties, such as required notices and employee training, an offending employer may be required to pay up to two years of back pay for each employee who was wrongfully terminated as a result of the employer’s unlawful conduct, and civil penalties of between $100 and $1000 for each affected employee.
Employers who engage in unfair documentary practices often do so because they worry about violating a different section of the INA, namely the prohibition against knowingly employing individuals who are not authorized to work in the United States. For example, an employer may think non-U.S. citizens or employees with certain accents are more likely to lack work authorization than individuals who present U.S. passports or have an “American accent.”
Thus, they scrutinize such individuals’ Form I-9 documentation more closely than they otherwise would.
However, any disparate treatment of employees during the Form I-9 process because of their citizenship or immigration status (actual or perceived) is unlawful. Thus, employers who are hyper-vigilant about not hiring unauthorized individuals may, ironically, open themselves up to even more liability under the INA through unfair documentary practices.
To avoid liability, employers should complete the Form I-9 steps that they are legally obligated to take, and then go no further. As a reminder, the employer’s only duty during the Form I-9 process is to examine the original document(s) provided by the employee (copies are not allowed) and ensure that they (1) are current and (2) reasonably appear to be genuine.
Additionally, when asking employees to complete Form I-9, employers should always provide a copy of the List of Acceptable Documents. The employer should refrain from referencing specific documents or even making suggestions about which documents to produce.
As shown in this article, the immigration law landscape is complex and rife with potential traps for employers. Since the current administration has made enforcement of the INA’s various provisions a priority, employers should pay extra attention to their onboarding and Form I-9 practices. If an employer has a strong reason to believe that an employee is unauthorized to work, it should immediately consult an experienced immigration or employment attorney before taking any further action to avoid inadvertent exposure.
Source:
1. Prior to January 18, 2017, the IER was named the “Office of Special Counsel for Immigration-Related Unfair Employment Practices.”
Among other things, IER receives and investigates discrimination charges related to so-called “unfair documentary practices” brought pursuant to the Immigration and Nationality Act (INA). “Unfair documentary practices,” as defined in the INA, simply means “request[ing] more or different documents than are required to verify employment eligibility, reject[ing] reasonably genuine-looking documents, or specify[ing] certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin.” 8 U.S.C. § 1324b.
Such unfair documentary practices constitute a form of unlawful discrimination under the INA.
One common example of an unfair documentary practice is where an employer requires a new employee to provide specific documents when completing Form I-9. Insisting on a particular document is unlawful because employees must be allowed to choose which documents on the List of Acceptable Documents (which is attached to the Form I-9) to produce. Thus, a permanent resident employee who chooses to present a driver’s license and an unrestricted social security card cannot, for example, be required to present a permanent resident card instead of or in addition to her chosen documents.
Another example of an unfair documentary practice is where an employer reverifies employees whose Forms I-9 do not have to be reverified. By way of background, employers generally must reverify an employee’s employment authorization when her employment authorization documentation expires. However, there are a couple of important exceptions to this general rule. Reverification is never required for U.S. citizens and noncitizen nationals. Additionally, employers are not allowed to reverify the following documents: U.S. passports, U.S. passport cards, Alien Registration Receipt Cards / Permanent Resident Cards (Form I-551) and List B documents.
When an employer re-verifies an individual or documents that should not be reverified, the employer may be accused of engaging in unfair documentary practices.
Employees who suspect their employer of committing unfair documentary practices may file a charge of discrimination with the IER. For employers, the most onerous aspect of an IER charge is that the IER can then open up a large-scale investigation into the employer’s Form I-9 practices if it has reason to believe that there is a pattern and practice of violations. IER investigations can be quite expensive and time consuming. Once the IER completes its investigation, it can either dismiss the charge, reach a settlement with the employer or file a complaint with an administrative law judge against the employer.
Employers found to have violated the INA’s ban on unfair documentary practices can face steep fines. In addition to non-monetary penalties, such as required notices and employee training, an offending employer may be required to pay up to two years of back pay for each employee who was wrongfully terminated as a result of the employer’s unlawful conduct, and civil penalties of between $100 and $1000 for each affected employee.
Employers who engage in unfair documentary practices often do so because they worry about violating a different section of the INA, namely the prohibition against knowingly employing individuals who are not authorized to work in the United States. For example, an employer may think non-U.S. citizens or employees with certain accents are more likely to lack work authorization than individuals who present U.S. passports or have an “American accent.”
Thus, they scrutinize such individuals’ Form I-9 documentation more closely than they otherwise would.
However, any disparate treatment of employees during the Form I-9 process because of their citizenship or immigration status (actual or perceived) is unlawful. Thus, employers who are hyper-vigilant about not hiring unauthorized individuals may, ironically, open themselves up to even more liability under the INA through unfair documentary practices.
To avoid liability, employers should complete the Form I-9 steps that they are legally obligated to take, and then go no further. As a reminder, the employer’s only duty during the Form I-9 process is to examine the original document(s) provided by the employee (copies are not allowed) and ensure that they (1) are current and (2) reasonably appear to be genuine.
Additionally, when asking employees to complete Form I-9, employers should always provide a copy of the List of Acceptable Documents. The employer should refrain from referencing specific documents or even making suggestions about which documents to produce.
As shown in this article, the immigration law landscape is complex and rife with potential traps for employers. Since the current administration has made enforcement of the INA’s various provisions a priority, employers should pay extra attention to their onboarding and Form I-9 practices. If an employer has a strong reason to believe that an employee is unauthorized to work, it should immediately consult an experienced immigration or employment attorney before taking any further action to avoid inadvertent exposure.
Source:
1. Prior to January 18, 2017, the IER was named the “Office of Special Counsel for Immigration-Related Unfair Employment Practices.”
Author Bio
| Nina Maja Bergmar is a member of Burr & Forman’s Labor & Employment group, where she defends clients in all areas of labor and employment law, including employment discrimination, wage and hour compliance, family and medical leave compliance, restrictive covenants, and related tort and contract claims. Visit www.burr.com Connect Nina Maja Bergmar |
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