The Obama Administration has steadily enhanced its enforcement of immigration-related employment discrimination, employers should pay close attention to these rules.

By Elizabeth Taylor and Patrick Shen

While most employers are relatively savvy when it comes to avoiding discrimination in the workplace, one challenging area for many, especially small-business owners, is compliance with the anti-discriminatory provisions of the Immigration and Nationality Act. The INA punishes employers for hiring unauthorized workers and requires employers to verify the work authorization of its newly hired employees. The law also includes anti-discrimination provisions intended to be a counterbalance to the verification requirements and prevent employers from going overboard in scrutinizing legal workers who may look or sound foreign. Enforcement of these antidiscrimination provisions has become increasingly costly to many employers due to a lack of understanding of the rules and increasingly aggressive enforcement actions by the Obama Administration.

Since the start of this administration, the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices has been actively investigating U.S. employers across all sectors and throughout the country. As a result, employers have paid millions of dollars to settle discrimination allegations. To illustrate the increase in enforcement actions, in 2007 OSC collected no monetary penalties from employers. In 2008, it collected just $45,000, but in 2013, penalties had increased to $1,150,000. In fact, just recently OSC set a new record for most fines collected — $320,000 — against a staffing company. That company’s only transgression was it allegedly required non-citizen employees to produce documents issued by U.S. immigration authorities, rather than standard documents such as driver’s licenses and Social Security cards, in order to ensure proper work authorization, which noncitizens are allowed to produce for the purpose of demonstrating work authorization.

The challenge facing businesses is many of the prohibited acts are not intuitively “discriminatory.”  In fact, in OSC’s view, “discrimination” does not have to include animus towards a particular group.  Instead, OSC argues any disparate (different) treatment at all may be deemed discriminatory.  Consequently, some of the nation’s most sophisticated companies, which are fully committed to preventing discrimination at the workplace, nevertheless have been penalized for actions they believed were innocent and appropriate.

There are several types of discrimination under the INA of which employers should be aware. The first is national origin discrimination. Employers may not discriminate when hiring or firing based on place of birth, country of origin, ancestry, native language, accent, or because the employee is perceived to be “foreign.” This provision applies only to employers with four to 14 employees, but complements the jurisdiction of the Equal Opportunity Employment Commission over larger employers, which imposes the same requirement.  

Employers also may not discriminate when hiring or firing based on citizenship status.  However, only specifically protected persons may bring a charge based on this ground, including U.S. citizens, lawful permanent residents who applied for naturalization within six months of eligibility, asylees and refugees, and beneficiaries of certain immigration legalization programs. Unless mandated by law, employers may not limit hiring to applicants of certain immigration status, such as U.S. citizens or nonimmigrant visa holders, to the exclusion of the other protected immigrant workers listed above.  

When verifying an employee’s authorization to work, employers must attest to having verified the employee’s identity and work authorization and record the attestation on Form I-9. The employer may not demand more or different documents from the employee than those listed on Form I-9 as acceptable documents. Violation of this law is called “document abuse” and may become the basis of a discrimination charge by OSC if the employer does so with the intent to discriminate against certain classes of workers based on immigration status. 

Finally, immigration laws also prohibit retaliation, intimidation, and coercion or threats against a person who asserts his rights under the anti-discrimination provisions.  This protection extends to any person, not only employees and protected persons.

In recent years, the OSC has focused its enforcement actions on several notable areas.  First, enforcement actions have been taken against employers who require more documentation from non-citizen employees at the time of initial verification. This over-documentation violation occurs most often when the employer mistakenly believes that a non-citizen employee must produce a Department of Homeland Security-issued immigration document, such as a green card or an employment authorization document as opposed to other forms of documents that are listed on the Form I-9. OSC often views a disproportionately high percentage of noncitizens producing DHS-issued documents to complete the Form I-9 as evidence of a discriminatory pattern, and employers have the difficult task of having to show that production of a DHS-issued document was voluntary on the part of the employee. Recent case law has held that discriminatory intent may be inferred by mere statistics.  

Second, some employers have been penalized for performing unnecessary reverifications of non-citizen employees. This occurs most often when employers mistakenly believe expiring permanent resident card (green cards) are synonymous with an expiring work authorization and ask permanent residents to update their I-9 Forms when the card expires. (Permanent residents are authorized to work indefinitely and do not have to be re-verified). OSC considers this mistake to be intentional discrimination or disparate treatment based on citizenship status if U.S. citizen employees are not asked to update their Form I-9 when their documents, such as a passport, expire.  

A third common violation is when an employer limits hiring to one citizenship status over another unnecessarily. For example, unless there is a law or government contract that require the workers to be U.S. citizens, the employer may not restrict its hiring in that manner. Likewise, OSC also examines the hiring of non-immigrant visa holders over U.S. workers, which also is prohibited. In June, OSC won a case before an administrative law judge against an agricultural employer for allegedly preferring to hire temporary foreign workers on the H-2A visa over U.S. workers. OSC also has focused significant enforcement resources in recent years against companies that allegedly prefer foreign information and technology workers over U.S. IT workers. Even U.S. companies with workforces that consist overwhelmingly of U.S. workers have had to settle charges of preferential hiring in favor of foreign visa holders over protected workers.  

Employers should take note because the penalties imposed for immigration discrimination violations can be significant. The civil monetary penalty for intentional discrimination can be as low as $375 or as high as $16,000 per person, depending on the violation history of the employer and the severity of the offense. The penalty for document abuse is comparable to that of an I-9 paperwork error, which is between $110 and $1,100 per person. In addition to monetary penalties, employers also may be liable for back wages and other non-monetary remedies, such as mandatory training and reporting. However, there is no criminal penalty for violating immigration antidiscrimination laws.

Given the complexity of immigration law and the increase in enforcement actions by this administration, there are several best practices employers are encouraged to utilize. Companies should always document nondiscriminatory reasons for employment decisions. Employers usually have many legitimate reasons for making personnel decisions that are unrelated to immigration status. A well-documented memorandum for the employer’s action often is sufficient to rebut an allegation of discrimination.  

Companies should have a clear policy and training protocol in place to refute allegations of company-wide discriminatory policies or practices. The penalty for a singular violation may not be significant, but OSC always looks deeper into a company’s practices to identify potential broader patterns or practices, which could result in much more costly penalties. If the employer has a clear policy of nondiscrimination and keeps records on staff training, OSC will find it more difficult to establish an institutional intent to discriminate.  

Employers also should establish a protocol for legal counsel to review job opening announcements to avoid language that may suggest preference of one citizenship status over another. This includes language restricting hiring to U.S. citizens as well as any suggestion that foreign temporary visa holders are preferred. Quite often, an investigation into the circumstances demonstrated the problem was not discriminatory hiring, but poor choices of words in the recruitment process. Employers must draft their job opening announcements carefully and avoid language that could be misconstrued as an improper preference. Any advertisement to fill open positions should be reviewed by the employer’s in-house or external counsel if possible to avoid such costly a misunderstanding.

This administration has steadily enhanced its enforcement of immigration-related employment discrimination, and it would behoove employers to pay attention to these rules. While there has been increased attention by OSC on larger corporations because enforcement may be complaint-driven, employers of all sizes and across all sectors must be aware of potential pitfalls. Through robust internal training and well-developed policies and procedures, employers can protect themselves against charges of immigration-related employment discrimination.

Elizabeth Taylor is IFA’s vice president of federal government relations and public policy, and counsel. Patrick Shen is a partner with the global information law firm Fragomen, Del Rey, Bernson and Loewy. Find them at fransocial.franchise.org.

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