Avoid Discrimination in the Form I-9 Process

Clifford Geiger
Clifford Geiger
10/20/2016

Employers must complete a Form I-9 for each new employee hired.  The purpose of the Form I-9 is to document that an employer has verified an employee’s identity and eligibility to work in the United States.  To complete the Form I-9 process, new employees may produce what is known as a “List A” document to establish their identity and work authorization.  These documents include a U.S. Passport for U.S. citizens, while non-citizens may produce a Green Card or an Employment Authorization Document.  Alternatively, an employee may produce one “List B” document to establish identity and a “List C” document to prove work authorization.  A typical combination would be a state-issued driver’s license or ID card plus a social security card.

The Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provision of the Immigration and Nationality Act.  This federal law prohibits: (1) citizenship status discrimination in hiring, firing, or recruitment for a fee; (2) national origin discrimination in hiring, firing, or recruitment for a fee; (3) document abuse; and (4) retaliation or intimidation.

Early this week the OSC entered into a settlement agreement with American Cleaning Co., a Boston area janitorial services company, concerning a claim of alleged document abuse.  Document abuse means using unfair documentary practices related to verifying the employment eligibility of employees in connection with the Form I-9.  These practices may include: (1) requesting more or different documents than are required to verify employment eligibility; (2) rejecting reasonably genuine-looking documents, and (3) specifying the production of certain documents over others based on an employee’s citizenship or immigration status, or national origin.

The OSC alleged that over a period of seven years, American Can Co. asked for either Green Cards or Employment Authorization Documents from employees who were not citizens.  If true this would be illegal document abuse, because employers cannot demand that an employee show a specific document from the Lists of acceptable documents to verify employment eligibility.  Regardless of citizenship or immigration status, or national origin, employees must be allowed to present any documentation they choose from the Lists of acceptable documents.  The company did not admit fault, but paid a civil penalty of $195,000 to resolve the claim.

Click here for the OSC’s tips on avoiding discrimination in the Form I-9 and E-Verify Process.

 

 

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