While employers need to be diligent about complying with IRCA’s employment verification rules, they should not be so overzealous that they end up penalizing qualified employees. IRCA has anti-discrimination rules that can result in an employer facing stiff sanctions. Employers of more than three employees are covered by the IRCA anti-discrimination rules (as opposed to the 15 or more employees covered by Title VII). IRCA protects most U.S. citizens, permanent residents, temporary residents or asylees and refugees from discrimination on the basis of national origin or citizenship status if the person is authorized to work. Aliens illegally in the U.S. are not protected.
Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provisions of IRCA, which prohibits citizenship and national origin status discrimination in hiring, firing and recruitment or referral for a fee, as well as document abuse (discriminatory I-9 form and E-Verify practices). If a company becomes overzealous in making sure all employees are authorized to work in the United States by requesting more documentation or certain documentation for non-citizens, it could be in violation of the anti-discrimination provision.
The OSC has been especially active recently in investigating and settling allegations under the anti-discrimination provision. In 2013, the OSC reached settlements with 20 employers concerning issues of document abuse or citizenship discrimination. The total penalties paid to the U.S. government in these 20 cases were approximately $788,500, with the largest penalty of $250,000, being paid by Centerplate, Inc., due to alleged document abuse. In addition to the civil penalties, employers paid approximately $260,000 in back pay to individuals who were alleged to have been discriminated against.