In the current climate of high immigration worksite enforcement, most U.S. employers carefully check workers’ eligibility for employment, using the required I-9 form. But some employers are paying a price for checking their workers in a manner that does not comply with federal law. These employers fail to realize that the Federal government not only targets its workplace enforcement efforts against employers who fail to check work eligibility documents; the government also targets employers who discriminate against lawful workers by asking for specific documents, or by asking for too many documents.
On May 16, 2011, the U.S. Department of Justice (DOJ) announced that Maricopa County Community College in Arizona had agreed to pay $45,760 in civil penalties and $22,123 in back pay to settle a lawsuit filed after foreign workers were asked for too much documentation when they were hired by the College. On December 28, 2011, DOJ announced that defense contractor BAE Systems Ship Repair Inc. had agreed to pay $53,900 because its Alabama subsidiary had been requiring all newly hired lawful permanent residents to present permanent resident cards, commonly known as “green cards,” as a condition of employment. According to federal worksite verification regulations, employers cannot demand that lawful permanent residents present “green cards;” it is up to the employees to decide which documents they will present to verify their eligibility to work. A green card holder may present a driver’s license and Social Security card, among other documents, to satisfy the federal requirements.
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) at the Department of Justice is responsible for protecting work-authorized individuals against discrimination. OSC will assist workers and file suit when it discovers that employers have not been complying with employment eligibility verification laws, which require employers to be careful when asking for documents to verify work eligibility. In OSC’s view, asking for too much documentation can be just as bad as not asking for documentation at all.
OSC recognizes four types of “document abuse” that can result in fines:
1. Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;
2. Improperly requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;
3. Improperly rejecting documents that reasonably appear to be genuine and to relate to the employee presenting them; and
4. Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to present particular documents the employer does not require other employees to present.
OSC operates a worker hotline at 1-800-255-7688, and an employer hotline at 1-800-255-8155. People who have questions about documentation requirements can also email osccrt@usdoj.gov or visit OSC’s website at www.justice.gov/crt/about/osc.
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