Part VIII: How can employers protect themselves from discrimination?

The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) has 10 recommended steps that helps employers avoid discrimination in the work place.

1. Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.

2. Examine and accept original documents that appear genuine and relate to the employee.

3. Do not demand different or additional documents as long as the documents presented prove identity and work authorization, are listed on the back of Form I-9, and appear genuine.

4. As long as the job applicants are authorized to work in the US, avoid requiring job applicants to have a particular citizenship status unless mandated by law or federal contract.

5. Give out the same job information to all callers, and use the same application form for all applicants.

6. Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.

7. Complete the I-9 form and keep it on file for at least three years from the date of employment or for one year after the employee leaves the job, whichever is later.

8. On Form I-9, verify that you have seen documents establishing identity and work authorization for all your new employees hired after November 6, 1986.

9. If re-verification of employment eligibility becomes necessary, accept any valid documents your employee chooses to present. For re-verification, employees need only present either a List A document or a List C document.

10. Be aware that US citizenship, or nationality, belongs not only to persons born within the fifty states, but may belong to persons born to a US citizen outside the United States. Persons born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, or Swains Island also are US citizens or nationals. Also, an immigrant may become a US citizen by completing the naturalization process.

Yet in 2011, we had nine cases of document abuse and seven cases of improper inquiry about citizenship status.

The University of California, San Diego (UCSD) Medical Center committed document abuse when it discriminated against non-US citizen employees by requiring them to produce specific List A documents, but did not ask for the same specific documents from US citizen employees. If a potential employee wrote that he or she was a noncitizen in Section 1 of Form I-9, UCSD Medical Center required them to issue particular List A documents to establish employment authorization. UCSD Medical Center continued the same documentary abuse, asking for specific List A documents, even at the re-verification stage. The employer entered expiry dates of all List A documents and then proceeded to re-verify List A documents that did not need to be re-verified.

The complaints started when a lawful permanent resident employee complained that UCSD Medical Center required her to present an unexpired “green card”, or she would be fired. An inquiry from OSC to UCSD Medical Center confirmed the complaint. From January 2004 to June 2011, UCSD Medical Center required noncitizen new hires to present specific List A documents. UCSD Medical Center misunderstood ‘green card’ for a visa or work permit, and thought this ‘green card’ required re-verification at expiration date. The employer also rejected combinations of List B and C documents if presented by noncitizen new hires; however, if a US citizen new hire presented those very same documents, the employer accepted those documents.

USCD Medical Center was charged with continuing a practice of document abuse according to U.S.C. § 1324b(a)(6), and adopting a “knowingly” and intentionally discriminatory policy toward non-citizens.

In another case, the company Life Generations Healthcare, LLC committed similar discriminatory conduct against its non-US citizen employees: Life Generations required non-US applicants, who were both naturalized and work-authorized, to compile more or different documents than needed on the Form 1-9; the company did not ask the same of native-born US citizens.

The complainant in the case was a work-authorized asylum applicant. When applying for a job, the company’s HR department asked the applicant to present a “green card”. The applicant explained that she did not have a Permanent Resident Card but was authorized to work. The second time the applicant applied for the job, she was asked to present her work authorization papers, or Employment Authorization Document (EAD). With her EAD, she was authorized to work as an asylum applicant. Even though the applicant was qualified for the job, she was told that she would not be employed because her EAD carried a future expiration date.

Between January 1, 2008 and April 12, 2010, the company required all newly hired non-US citizens to produce a List A document during the Form 1-9 Employment Eligibility Verification process because of their citizenship status and/or national origin. During the time the complainant was authorized to work, June 23, 2009-June 22, 2010, Life Generations Healthcare hired five new individuals: one US citizen and four lawful permanent residents. The lawful permanent residents presented a permanent resident card to show work authorization.

Life Generations Healthcare, LLC was found guilty of unfair immigration-related employment practice and in violation of the anti-discrimination provision of the INA, 8 U.S.C. § 1324b(a)(l) and (a)(6).

Citizenship status discrimination refers to employers treating potential employees differently because they may or may not be US citizens, or may or may not be authorized to work in the US. US citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. But there is an exception to the citizenship status discrimination: those permanent residents who do not apply for naturalization within six months of being eligible to apply are not protected from citizenship status discrimination.

Employers seem to be fixated on green cards. From the cases above, the employer’s HR employee asked for a green card during the I-9 employment verification process. In particular, HR was fixated on asking for green cards from non-US citizens even though these employees had produced valid and acceptable documents; HR consistently asked for more documents than required, and refused to accept valid and acceptable documents. This constitutes document abuse.

The result has been that OSC has settled with employers for very costly monetary fines, civil penalties and remediation. In addition, employers have to enter into agreements to undergo training, reporting and monitoring between 18 months to three years. This is an unnecessary expense for the employer. Fines have ranged from $10,000-$115,000.

What is the solution? First, employers should make sure HR personnel understand the laws, especially which documents are required in order to establish identity and work authorization. Second, seek help from an immigration lawyer. Last, use the newest updates and technology to ensure that no mistakes are made.

Next Week: Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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