[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, co-authored by Bruce E. Buchanan, The I-9 and E-Verify Handbook.]
What are the Immigration Reform and Control Act’s anti-discrimination and unfair documentation practices (document abuse) rules?
Though employers need to pay careful attention when it comes to adhering to the Immigration Reform and Control Act’s (IRCA) employment verification rules, it should not be so overzealous to the point of being detrimental to qualified employees. IRCA’s anti-discrimination rules are applicable to employers of more than 3 employees (in contrast to the 15 or more employees required by Title VII of the Civil Rights Act) and can lead to stiff sanctions. IRCA protects most U.S. citizens, permanent residents, temporary residents, asylees, and refugees from discrimination on the basis of national origin or citizenship status if the person has work authorization. Aliens who are in the United States illegally are not protected.
Under IRCA, employers are not allowed to refuse to hire an individual based upon the applicant’s national origin or citizenship status, nor can employers discharge employees because of those reasons. Additionally, the employer is not permitted to request specific documents in completing a Form I-9 and to refuse documents which appear to be genuine. It is worth noting, however, that an employee needs to be shown to have had the intent to discriminate, but this issue of intent is highly debatable. Immigrant and Employee Rights Section of the U.S. Department of Justice (formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)), and the Office of the Chief Administrative Hearing Officer (OCAHO) holding the position of Life Generations Healthcare (2014) that “statistical or evidence,” can prove intent, though this appears incongruent with OCAHO’s decision in Diversified Technologies & Services.
December 2016 saw a new regulation established by the Department of Justice, the location of the Immigrant and Employee Rights Section, which addressed the definition of “discriminate.” The new regulation held that the word, “discrimination, in the context of Title 8 of the U.S. Code, section1324b: Unfair Immigration-Related Employment Practices, and in the context of Form I-9 completion, means the act of:
Intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for the different treatment, and regardless of whether such treatment is because of animus or hostility.
According to the Immigrant and Employee Rights Section, the regulation incorporates the intent requirement contained in the amended statutes and case law. Under section 1324b, in concurs that a violation cannot be established under a strict liability standard or a disparate impact theory.
It is possible for employers to be sanctioned separately based on laws enacted in 1990, if they request more or different documents than required by the Form I-9 rules. Originally, employers were held strictly liable for violations falling under this category, however a 1996 law required that the employer’s intent to discriminate had to be demonstrated. Therefore, one must come to the conclusion as to whether non-U.S. citizens are treated differently than U.S. citizens.
Who may file a complaint under the Immigration Reform and Control Act against an employer for violations of the employer sanctions rules?
Any individual who has knowledge of a violation or potential violation of the Immigration Reform and Control Act (IRCA) may submit a signed, written complaint in person or by mail to the local U.S. Department of Homeland Security (DHS) official which holds jurisdiction over the employer.
How is enforcement responsibility split between the Immigrant and Employee Rights Section of the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission?
The Immigrant and Employee Rights Section and the U.S. Equal Employment Opportunity Commission (EEOC) divide jurisdiction over “national-origin” discrimination charges.
The EEOC takes care of matters involving employers who have at least 15 employees, while the Immigrant and Employee Rights Section maintains responsibility for smaller employers, who have between 4 and 14 employees. The Immigrant and Employee Rights Section covers “national origin” claims involving intentional acts of discrimination regarding hiring, firing, and recruitment. Meanwhile, the EEOC holds broader jurisdiction under Title VII of the Civil Rights Act.
The Immigrant and Employee Rights Section holds exclusive jurisdiction in ruling on “citizenship and immigration status” discrimination claims against employers with at least 4 employees. The Immigrant and Employee Rights Section also holds jurisdiction over unfair documentary practices claims for employers with at least 4 employees.
What is “national origin” discrimination?
“National origin” discrimination refers to instances in which a person or entity discriminates against any individual (other than an unauthorized immigrant) pertaining to the hiring, recruitment, or referral for a fee of the individual for employment, or the firing of the individual from employment based on that individual’s national origin.
What is “citizenship or immigration status” discrimination?
“Citizenship or immigration status” discrimination refers to when a person or entity discriminates against any individual, other than an unauthorized immigrant, with respect to hiring, recruitment, or referral for a fee or the individual for employment, or the firing of an individual from employment as the direct result of the individual’s citizenship or immigration status.
What is “unfair documentary practices”?
Formerly referred to as “document abuse,” unfair documentary practices refers to discriminatory practices pertaining to employment eligibility verification in the Form I-9 process. Employers treating individuals differently based upon national origin or citizenship commit unfair documentary practices when they engage in one of the four following types of activity:
- Improperly requesting employees to produce more documentation to demonstrate identity and employment authorization than required.
- Improperly asking employees to produce a particular document to demonstrate identity or employment eligibility.
- Improperly rejecting documents which appear to be genuine and belonging to the employee.
- Improperly treating groups of applicants differently, such as on the basis of looking or sounding foreign, when they complete Forms I-9
All individuals who are authorized for employment can file a claim under the document abuse rules if an employer has at least 4 employees.
What are examples of prohibited practices?
The following constitute examples of prohibited practices when they are based on an employee’s “national origin” or “citizenship or immigration status”:
- Setting different employment eligibility verification standards or requiring different documents based on national origin or citizenship status. For example, an employer that requires non-citizens to present documents issued by U.S. Department of Homeland Security, such as green cards.)
- Requesting to see employment eligibility verification documents before hire and completing the Form I-9 because an employee appears foreign or the employee indicates that he or she is not a U.S. citizen.
- Refusing to accept a document or hire an individual because an acceptable document has a future expiration date.
- Requiring an employee during re-verification to present a new unexpired Employment Authorization Document (EAD) if the employee presented an employment document during the initial verification. It is worth noting that this apparently contradicts previous statements from Immigration and Naturalization Services (INS), and the outcome of at least one court case holding than an employer may have a responsibility to ask an employee whether employment authorization has been extended. An employer should consult with counsel in such situations.
- Limiting jobs to U.S. citizens, unless law or regulation mandates such exclusion.
- Requesting to see a document with an employee’s “Alien” or Admission number” when completing Section 1 of Form I-9.
- Asking a lawful permanent resident to re-verify employment eligibility because of the individual’s green card expiration.
How does Title VII of the Civil Rights Act provide employees additional protections?
Title VII covers discrimination in any aspect of employment, barring employment discrimination on the basis of national origin, race, color, religion, and sex. Employers with at least 15 employees for 20 or more weeks in the preceding or current calendar year are covered.
What is the basis for regulating immigration-related unfair employment practices?
Section 274B of the Immigration and Nationality Act (INA) specifically prohibits discrimination on the basis of national origin or citizenship status.
Can employers discriminate against employees requiring visa sponsorship?
The anti-discrimination provisions of the Immigration Reform and Control Act (IRCA) do not protect nonimmigrant aliens, independent from their work authorization status, aliens who are not in legal status in the United States, and other individuals requiring visa sponsorship. Title VII of the Civil Rights Act does offer some protections for these individuals, though, with respect to instances in which employers that appear to be inconsistent in whom they do and do not consider for sponsorship. Such employers could be found to have engaged in “national origin” discrimination under that law.
Can employers discriminate against employees with an expiring Employment Authorization Document?
No. An impending expiration date is not supposed to be considered when determining a person’s qualification for a position, and such a consideration may be considered employment discrimination. Employers are prohibited from refusing to hire a person solely because he or she has a temporary employment authorization. However, this does not preclude re-verification upon the expiration of employment authorization.
Are employees protected from retaliation if they complain about discrimination?
Yes. Employers are prohibited from retaliating against employees who file a charge with the U.S. Department of Justice’s Immigrant and Employee Rights Section or the U.S. Equal Employment Opportunity Commission (EEOC). Furthermore, employees are protected if they are a witness or participate in an investigation or prosecution of a discrimination complaint, or if the employee asserts rights under the Immigration Reform and Control Act’s (IRCA’s) anti-discrimination provisions or under the Title VII of the Civil Rights Act.
Who is a “protected individual under the Immigration Reform and Control Act, and can an employer discriminate against individuals not included?
A “protected individual” under the anti-discrimination rules of the IRCA include any U.S. citizen in addition to those who fit into the following categories:
- Recent lawful permanent residents (LPRs) or green-card holders, those who have not led LPR status for longer than six months beyond becoming eligible to naturalize.
- Refugees.
- Certain beneficiaries of the 1986 legalization program (as of this point, only a few of these individuals have yet to become green-card holders).
- Asylees.
It is not a requirement for employers to consider applicants who do not fall into one of these categories under the IRCA anti-discrimination rules. However, employers need to remember to be careful to maintain consistency when applying policies in order to avoid a finding that a particular group has been disparately treated, as this could lead to a finding of “national origin” discrimination under Title VII of the Civil Rights Act.
What information can be requested of an individual prior to the commencement of employment?
Employers requiring applicants complete Forms I-9 before the beginning of employment should be careful, as there is a possibility of “national origin” discrimination. The employer should always wait until an offer has been extended and accepted before requesting completion of the Form I-9. Maintaining a uniform policy regarding Form I-9 completion is a wise practice, and a rational reason should motivate any exception to it.
Can an employer maintain a policy of exclusively employing U.S. citizens?
No. Unless the employer is governed by a law or regulation mandating that the employee must be a U.S. citizen, such discrimination against individuals protected under the Immigration Reform and Control Act (IRCA) would be considered unlawful discrimination.
Can an employer require employees to post indemnity bonds against potential liability under the Immigration Reform and Control Act?
No, in fact such a practice is explicitly prohibited under DHS regulations, including any other type of indemnification required by an employer against potential liability arising under the IRCA. Regulations do state, however, that an employer may require an employee to agree to a “performance clause” stating an employee unable to perform the duties associated with he job may be held accountable to the employer. The enforceability of such a clause is a question of contract and employment law, so in these instances, counsel should be consulted.
Can an employer unsure of the validity of a new hire’s documents request U.S. Department of Homeland Security verify the status of the employee?
Only employers participating in E-Verify can validate the status of an employee through DHS. However, employers are allowed to contact DHS should they have reason to believe an employee’s documentation is suspicious. If DHS finds the matter warrants further investigation, U.S. Immigration and Customs enforcement (ICE) may conduct an investigation into the matter. If an employer contacts DHS regarding documents it believes to be invalid, the employer would not be liable for discrimination, as long as the belief of invalidity is genuine and not an instance of the employer singling out an employee based upon sounding or appearing foreign.
Employers can contact the Social Security Administration (SSA) to verify the validity of a Social Security Number (SSN). Information regarding this online service can be found at www.ssa.gov/bso/services.htm.
How is a complaint filed for an Immigration Reform and Control Act anti-discrimination violation?
The U.S. Department of Justice’s Immigrant and Employee Rights Section accepts charges filed by either individuals or their representatives who believe they have been the victims of employment discrimination. DHS officers may also refer matters, especially those based on data-gathering through E-Verify.
It is necessary for discrimination charges to be filed within six months of the alleged discriminatory acts. Upon the filing of the claim, the Immigrant and Employee rights Section has a 10-day window to notify the employer and will then either file a complaint with an administrative law judge (ALJ) within 120 days or notify the charging party that it will not file a complaint. The charging party can then independently file a complaint within 90 days of receiving the notification from the Immigrant and Employee Rights Section. The Immigrant and Employee Rights Section may reverse its decision and file a complaint within this 90-day period. The ALJ will then conduct a hearing and issue a decision, or the parties may reach a settlement agreement independently.
What is the procedure to file a complaint under the Immigration Reform and Control Act against an employer for violation of the anti-discrimination rules? What about a complaint under Title VII of the Civil Rights Act?
It is required that the complaint detail the allegations, identify the parties, and list the relevant dates of the alleged violations and be filed within 180 days of the alleged discriminatory act.
Individuals who believe they have been the victim of discrimination prohibited under the Immigration Reform and Control Act can call the DOJ’s Immigrant and Employee Rights Section employee hotline at 800-255-7688 or email the Immigrant and Employee Rights Section at [email protected]. There is also a telephone intervention program, which can be reached at 800-255-8155, which permits employers and employees to speak with a representative in order to resolve a matter without going through the formal complaint process.
The Immigrant and Employee Rights Section may also file a complaint based on an investigation initiated by its office, such as a referral from USCIS, up to five years after the date of the alleged discrimination.
Individuals seeking to file a complaint under Title VII of the Civil Rights Act can call the U.S. Equal Employment Opportunity Commission (EEOC) at 800-669-4000, visit www.eeog.gov, or email [email protected].
How does the Immigrant and Employee Rights Section investigate complaints?
Initially, the U.S. Department of Justice’s Immigration and Employee Rights Sections needs to determine the claim’s merit. If the Immigrant and Employee Rights Section decides to investigate a complaint, it will send written notification to the employer about the opening of an investigation and request in writing information and documentation pertaining to the complaint. If the employer refuses to cooperate, the documents may be subpoenaed.
The Immigrant and Employee rights Section has 120 days to decide if the charge is true and whether to bring a complaint. It may also send notification to the complaining party during that 120-day period indicating it will not file a complaint.
How many complaints to the Office of Special Counsel for Immigration-Related Unfair Employment Practices resulted in a monetary settlement in 2015?
In 2015, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (now known as the U.S. Department of Justice’s Immigrant and Employee Rights Section) reached a settlement with 15 employers on document abuse or citizenship discrimination. The settlements resulted in approximately $1.5 million in civil penalties, with the largest civil penalty being $445,000 and back pay due to individuals of approximately $250,000.
In 2016, the OSC reached a settlement with 17 employers on document abuse or citizenship discrimination, resulting in more than $1.1 million in civil penalties, the largest of which being $200,000 and back pay due to individuals of approximately $116,000.
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