The Department of Justice (DOJ), through its Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), recently settled a claim alleging discrimination, based on unfair documentary practices during the employment verification process, against employment-authorized non-U.S. workers by their employer. Commonly referred to as “document abuse,” the anti-discrimination provision of the Immigration and Nationality Act (INA), among other things, prohibits employers from requesting more or different documents than required to verify employment eligibility, rejecting reasonably genuine-looking documents, or specifying certain documents over others with the purpose of discriminating on the basis of citizenship status or national origin.

Specifically, through its investigations, initiated based on a referral from the U.S. Citizenship and Immigration Services, the DOJ confirmed that the employing company committed document abuse when it required work-authorized non-U.S. citizens to produce specific documentation issued by the U.S. Department of Homeland Security for the purpose of verifying their employment eligibility. On the other hand, the company permitted U.S. citizens to present their choice of documentation.

Under the terms of the settlement agreement, the company agreed to pay $53,500 in civil penalties and create a $25,000 back pay fund to compensate individuals who may have lost wages as a result of the employer’s discriminatory document practices. The company is also required to have its employment eligibility verification practices monitored for one year. Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division stated that discrimination against employment-authorized workers “because they are not citizens violates federal law and the Justice Department is committed to enforcing this law.”

OSC vigorously investigates and prosecutes claims of discrimination and, as this case illustrates, employers found to be engaging in discriminatory activity may be required to pay civil penalties and back pay to injured parties. When reviewing or assessing compliance programs, it is critical that companies examine their hiring policies and practices to avoid discrimination and proactively discuss compliance with experienced legal counsel.

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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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