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The Department of Justice (DOJ) has announced its latest round of employer settlement agreements to resolve allegations of unlawful discrimination during the I-9 process. As with other recent settlement agreements, the DOJ found that the employers imposed unnecessary and discriminatory requirements on legal permanent residents (often called green card holders) by improperly requesting a specific document to establish work authorization and refusing employment despite evidence of the employees’ valid documents. While it’s not clear from the press release whether these were just cases of overzealous I-9 completion or part of a discriminatory scheme, the message to employers is clear: the Justice Department will vigorously investigate situations where an employee has been unjustly treated (or treat differently) during the I-9 process. Of course, ICE has also made its own message clear: employers will be held accountable for failing to properly conduct employment eligibility verification.

And here you thought the I-9 was just another piece of onboarding paperwork…

Not seeing the forest for the trees?

In today’s press release, the DOJ first recounts the case against Collins Management Corporation, a forestry products company in Oregon. According to the DOJ’s findings, the company insisted that a lawful permanent resident employee present an unexpired permanent resident card (a List A document), even though the individual had already presented his driver’s license (List B) and unrestricted Social Security card (List C) to the employer. When the employee was unable to present the unexpired green card, the company fired the individual and refused to consider him for re-hire two months later because the company believed he still did not possess proper documentation.

The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits unfair documentary practices (known as document abuse), which occurs when employers treat individuals differently on the basis of national origin or citizenship status (in the case at hand, the employee was a non-citizen lawful permanent resident). Document abuse covers four types of prohibited practice, which include:

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.

As part of the settlement agreement, the company agreed to pay $15,000 in back pay to the former employee and a $600 civil penalty to the federal government. The company also agreed to train its managers and human resources representatives regarding compliance with the anti-discrimination provision of the INA.

Another healthcare company in trouble with the DOJ

Previously, we reported on one of the largest settlements for unfair I-9 documentary practices (a whopping $257,000) which involved a large healthcare network. The DOJ’s most recent healthcare I-9 case is much smaller, but exhibits the same discriminatory problem. According to the DOJ, Oakwood Healthcare Inc. unlawfully discriminated against a lawful permanent resident (seeking a job at their Ashville, NC facility) by rejecting her employment eligibility verification documents and rescinding an offer of employment. As with the Collins case above, the company acknowledged the violation and agreed to compensate the individual for lost wages totaling $732, pay a $1,100 civil penalty and train its human resources employees regarding compliance with the anti-discrimination provision.

Lawful Permanent Residents and the I-9 Process

According to the Office of Immigration Statistics, an estimated 12.5 million legal permanent residents (LPRs) live in the United States (as of January 1, 2009). While not all of these individuals may be seeking new employment, it certainly raises the possibility that your organization will need to complete an I-9 for an LPR at some time or another. Further, the continuing saga of DOJ settlements frequently concern LPRs who are wrongly terminated or refused employment based on their I-9 document selection. So, how should employers complete I-9s for lawful permanent residents without engaging in unlawful discrimination?

First, you should visit the DOJ’s Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) website (which was recently re-branded in the DOJ’s brown and gold color scheme). There, you will find a lot of helpful guidance on avoiding discrimination during the I-9 process, along with this advice which would have saved our latest employer casualties the cost and embarrassment of a DOJ investigation:

Employers] must accept all documents that are sufficient to complete the form as long as they appear reasonably genuine on their face and relate to the employee. For example, all individuals who possess a driver’s license and unrestricted Social Security card may present those documents to satisfy Form I-9 requirements. Similarly, employers may not require aliens to produce “green cards” or United States citizens who appear “foreign” to produce birth certificates. Instead, it is the employee’s choice which of the acceptable Form I-9 documents to present.

Second: although it’s not as famous (or infamous) as the M-274, you can turn to the OSC’s Guide to Fair Employment, which can be downloaded here. Among other things, the guide explains how to avoid immigration-related employment discrimination and provides you with questions and answers to “tricky hypothetical situations. In particular, check out questions #1 and #4 to see if you are handling LPRs correctly.

Lastly, when in doubt, employers should always discuss these tricky I-9 issues with experienced immigration counsel, and implement internal training programs based on their advice. It’s never too late to turn your I-9 operations around and prevent (or mitigate) the possibility of a DOJ press release!

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