Today, the Department of Justice announced another “6-figure” anti-discrimination settlement agreement – this one with the University of California San Diego Medical Center – to resolve allegations that the hospital failed to comply with proper I-9 procedures for non-citizens who are authorized to work in the United States. As described in my earlier blog post in December, the Department of Justice (DOJ) filed suit against UCSD Medical for an alleged pattern or practice of requesting excessive I-9 documentation. Under the terms of the settlement announced today, UCSD Medical has agreed to pay a civil penalty of $115,000, one of the higher civil penalties we’ve seen to date. In addition, UCSD has agreed to conduct supplemental training of its human resources personnel on their responsibilities to avoid discrimination in the employment eligibility verification process and work with the DOJ to ensure compliance with proper Form I-9 processes across all University of California campuses, medical centers and facilities.
Enforcement Trend Continues
Last year, employers saw an unprecedented increase in the number of enforcement actions brought by the DOJ for discriminatory I-9 practices, due in part (I believe) to the increasing pressure from Immigration and Customs Enforcement (ICE) to follow the often confusing I-9 rules and procedures. It’s no secret that ICE has stepped up its enforcement activity, which may sometimes have the perverse effect of encouraging accidental (or intentional) discrimination in the hiring process. For example, according to a General Accounting Office report prepared shortly after the I-9 regulations went into effect, the law caused widespread discrimination (19% of organizations polled), leading many employers to require more or different documents than are actually required. In recent years, the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) has been vigorously investigating and prosecuting such claims of discrimination, and employers found to be engaging in discriminatory activity have been required to pay civil penalties and any appropriate back pay to injured parties.
Avoiding the temptation to “Go too Far”
When employers think about I-9 rules, the primary focus tends to be on making sure that the form is completed properly, original documents are reviewed, and everything is retained for the right amount of time in order to avoid potential issues and fines from ICE. However, employers must also recognize that it is illegal to discriminate against work-authorized individuals and employers cannot specify which document(s) they will accept from an employee. This latter offense, known as “document abuse,” can occur in any one of the following prohibited practices:
- Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization;
- Improperly requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;
- Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and
- Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to produce particular documents the employer does not require other employees to produce.
Despite this warning and the potential consequences, many employers continue to fall prey to discrimination charges and fines as the OSC aggressively pursues these complaints. For a list of recent settlement agreements, make sure to visit the OSC’s settlement page and look for “document abuse.”
“Green Card” Misconceptions
Getting back to the case at hand, it appears (based on the complaint) that UCSD Medical may have requested certain non-citizen new hires to present a List A document, issued by the U.S. Department of Homeland Security (DHS) or its predecessor agency, during orientation sessions as a condition of employment. So for example, employees attesting to be a “lawful permanent resident” would be required to present a green card, despite the fact that other documents (such as a driver’s license and unrestricted social security card) are acceptable too. Meanwhile, UCSD Medical allegedly followed the correct procedure with the large majority of US citizens hired, allowing them to produce any acceptable document.
Healthcare Companies Beware
Previously, we reported on one of the largest settlements for unfair I-9 documentary practices (a whopping $257,000) which involved a large healthcare network. Healthcare employers in general are particularly prone to I-9 issues, given the relative size of the industry and the diversity of the workforce (and job arrangements). Many employees in the industry are on part-time schedules (e.g., shifts) whereas others may work from home or provide on-site home healthcare services. Following the I-9 rules across such a diverse entity can be challenging indeed, which is why healthcare employers in particular should pay close attention to their current I-9 practices and evaluate whether changes are needed.
So, how should employers ensure that I-9s are completed properly without engaging in unlawful discrimination? Here are 3 essential steps:
- Engage experienced immigration counsel to evaluate your current processes and procedures and address all of those tricky grey areas in the law.
- Develop policies, documentation, and training – the 3 best ways to ensure that your organization is on the same page when it comes to I-9 and E-Verify processing
- Begin using a smart Electronic I-9 and E-Verify program – a well designed system will alleviate many I-9 concerns by preventing mistakes, standardizing practices/procedures, and guiding employers on the proper procedure for requesting I-9 documentation.
The New Year is upon us, and one of the best resolutions for 2012 should be to prevent (or mitigate) the possibility of an I-9 related investigation (whether it be from ICE, DOJ, or some other interested government agency). Regardless of the source, enforcement remains a top priority and employers are still squarely in the cross-hairs.
Originally published by LawLogix Group Inc. Reprinted by permission
John Fay is an experienced corporate immigration attorney and I-9/E-Verify blogger with a unique background in designing and advising on case management technology. While practicing immigration in New York City, John designed and managed his firm’s proprietary web-based immigration management system, which featured a fully multilingual interface for international organizations. In his current role, John serves as Vice President of Products and Services and General Counsel at LawLogix, where he is responsible for overseeing product design and functionality while ensuring compliance with rapidly changing immigration rules.