Immigration-Status, National Origin Discrimination in Employment according to Justice Department
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (responsible for enforcing the anti-discrimination provisions of the Immigration and Nationality Act) has released a Fact Patterns Flyer.
The flyer provides examples of recent OSC prosecutions that resulted in employer-paid settlements to the Department of Justice for what the agency describes as common immigration-status-based discriminatory conduct by businesses.
Presumably, the flyer was prepared to educate employers about the risks associated with faulty Form I-9-related compliance practices and provide employees with a list of conduct that may be the basis of a complaint and agency investigation. The list includes the following:
• When an employer demands specific documents from a new hire;
• When an employer asks certain employees for more documents than are necessary to complete the Form I-9;
• When an employer rejects work authorization documents from non-U.S. citizens, but accepts the same documents from U.S. citizens;
• When an employer demands that lawful permanent residents present new “green cards” after the original document presented expires, but does not demand the same of U.S. citizens;
• When an employer refuses to hire workers who sound or appear foreign;
• When an employer hires non-immigrant visa holders, but rejects U.S. citizens and other work-authorized individuals who apply for work;
• When an employer hires undocumented workers instead of work-authorized individuals;
• When an employer separates work-authorized workers for lying about their prior undocumented status, but does not fire other workers for lying about different aspects of their background;
• When an employer separates employees for whom it receives an E-Verify “tentative nonconfirmation” (TNC) notification on a selective basis;
• When an employer uses E-Verify to pre-screen applicants on a selective basis; and
• When an employer pre-screens all applicants, but does not hire applicants for whom it receives no-match notifications or E-Verify TNC notices.
Although the list is non-exhaustive, these real-world examples have resulted from successful investigations by DOJ and its standards and definitions for what constitutes violations of the law.
Employers may find the Fact Patterns Flyer helpful in assessing their conduct. Employers also may consider the following:
(1) Injured parties need only file a discrimination charge to begin the administrative adjudication process—there is no independent review of the veracity of the allegations completed by the agency prior to its demand to the employer for an informal response to the allegations. In other words, credibility of the initial claim is presumed.
(2) OSC also will initiate an independent investigation based upon information developed during the individual charge investigation, and will commonly liaise with other government agencies to support the charge that the employer’s compliance failures evidence a pattern or practice of discriminatory activity. Essentially, an employer must prepare for the possibility of a systemic investigation that flows from a single, individual claim by an allegedly-aggrieved employee.
Understanding the complexities of the verification process is only the beginning. An employer also must be able to point to standard policies and consistent operating procedures that may serve as a backstop to government allegations of company-wide discriminatory activity. Unless an employer may deflect OSC’s interest in examining its verification practices in every location of the organization with the support of sister-enforcement-agencies, like Immigration and Customs Enforcement, CIS Fraud Detection, Department of Labor Wage & Hour, and IRS auditors, the consequences of the investigation may jeopardize the business well beyond the one employee.
