Requesting Too Many Documents Can Be Costly

Federal Government Is Cracking Down On I-9 Process

The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, a division of the Department of Justice (DOJ), enforces the anti-discrimination provisions of Section 274B of the Immigration and Nationality Act. This statute prohibits discrimination in hiring, firing or recruitment or referral for a fee that is based on an individual’s national origin or citizenship status. The statute also prohibits unfair documentary practices during the employment eligibility verification (Form I-9) process, and retaliation or intimidation.

What can happen to employers that request too many documents during the I-9 process or reverify employees with expired permanent residence cards (green cards)? Two employers have recently learned that civil fines and back pay penalties may result from such violations. In October, an OSC investigation determined that a major health care company had required non-U.S. citizens and naturalized U.S. citizens to present more work authorization documents than required by the I-9 process, but allowed native born U.S. citizens to select the documents they provided. Under the settlement agreement, the health care provider will pay $257,000 in civil penalties plus $1,000 in back wages to the charging party. The company also agreed to review its I-9 procedures, train recruitment personnel on I-9 procedures, and provide specific reports to the OSC for three years.

On November 10, the DOJ announced that it reached a settlement agreement with vacuum manufacturer Hoover Inc. in a similar situation. An OSC investigation found that Hoover had required employees who had presented a permanent resident card (green card) for I-9 purposes to produce a new green card when theirs expired. Hoover agreed to a civil penalty of $10,200, to conduct I-9 training, and to provide reports to the OSC for a period of one year.

Employers are encouraged to revisit their I-9 processes to ensure compliance not only with basic I-9 completion requirements but also to be sure they are not violating the I-9 discrimination and document abuse rules.

Note: This article was published in the November/December 2010 issue of The Employment Law Authority.