OSC “Pattern and Practice” Investigations to Continue

Over the past few years, the number of employer investigations—and perhaps more noteworthy, the amount of the penalties assessed—by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has steadily increased. All indications suggest that this trend will continue for the foreseeable future. 

By way of background, OSC is tasked with enforcing the anti-discrimination provisions of the Immigration and Nationality Act. Housed within the Civil Rights Division of the U.S. Department of Justice, OSC investigates claims relating to citizenship status and national origin discrimination in the hiring and firing process, unfair documentary practices during the employment eligibility verification process, and retaliation or intimidation against individuals who bring a charge or otherwise assert their rights in connection with these prohibited practices. The notable rise in investigations appears to be concentrated among claims of unfair documentary practices, also referred to as document abuse.

What Is Document Abuse?

At its core, document abuse occurs when an employer “request[s] more or different documents than are required to verify employment eligibility, reject[s] reasonably genuine-looking documents, or specif[ies] certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin.” This can encompass an exceptionally wide range of situations, some of which are seemingly innocuous, but do in fact have the potential to violate the anti-discrimination regulations. For instance, an employer that utilizes an electronic Form I-9 system that suggests suitable documents based on an individual’s immigration status would likely run afoul of the document abuse provisions. Similarly, an employer that requests to see the permanent resident card to satisfy the Section 2 attestation of Form I-9 for any individual who identifies as a permanent resident in Section 1 would also violate the regulations on unfair documentary practices. Both of these scenarios potentially restrict the option of what form(s) of documentation to present in order to satisfy the Form I-9 requirements, which is a choice that always rests with the employee. Likewise, an employer that requests an employee to present new documentation upon the expiration of a previously-presented permanent resident card also constitutes document abuse (this practice is prohibited under both the I-9 and E-Verify rules, as the expiration of a green card does not signify that a person is no longer a permanent resident). These are just a small sampling of the employment practices that are prohibited under the document abuse provisions of the Immigration and Nationality Act.

Enforcement Actions

The increase in investigations, as well as size of the penalties assessed against employers in document abuse cases, can generally be attributed to two factors. The first factor is the 2010 Memorandum of Understanding (MOU) between OSC and the U.S. Citizenship and Immigration Services (USCIS), which formalized an information-sharing agreement wherein USCIS may refer to OSC information concerning “allegations of discrimination arising out of employer use of E-Verify” and “information regarding the misuse, abuse, or fraudulent use of E-Verify.” Since an analysis of the data collected during the E-Verify process (which also mirrors the data on Form I-9) can provide insight into an employer’s employment eligibility verification practices, the MOU with USCIS (which administers the E-Verify program) provided OSC with access to a wealth of new information.

The MOU is only significant in light of the second factor, which is USCIS’s increased focus on policing the use of the E-Verify system. This is most readily evident in the increased activities of the E-Verify Monitoring and Compliance (M&C) branch, a distinct unit within USCIS that is tasked with protecting the integrity of the E-Verify program. In fiscal year 2011, the M&C branch effectuated 86 “interagency actions,” which consist of referrals to OSC and/or Immigration and Customs Enforcement. By fiscal year 2014, this number increased more than tenfold to 909 interagency actions.

Coinciding with the increase in interagency actions—or perhaps driven by it—OSC changed the focus of its investigations. Instead of conducting investigations based on charges brought by individuals, OSC shifted its investigatory direction to cases involving a pattern or practice of alleged violations. By their very nature, pattern or practice investigations involve multiple alleged violations, thereby leading to a noticeable increase in penalties. For instance, an M&C referral to OSC that indicated an employer was listing a passport on Form I-9 for 95 percent of individuals who identified themselves as U.S. citizens might lead to an inference that the employer was specifically requesting this document, which would constitute document abuse. Armed with a wealth of data from USCIS referrals, OSC was provided with a new source of data that directly enhanced its investigatory capacity, and an examination of recent settlement agreements suggests that the agency is leveraging this new data to its advantage.

In this era of increased data mining and interagency cooperation, employers must remain vigilant to ensure that their employment eligibility verification processes do not trigger an OSC investigation, which could otherwise lead to sizeable penalties and unfavorable publicity.