I-9 Tunnel Vision Can Lead to Bias Charges by DOJ

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By Laura D. Francis

Feb. 2 — Employers concerned about I-9 compliance should be aware that overzealous efforts could draw the attention of a little-known enforcement agency: the Office of Special Counsel for Immigration-Related Unfair Employment Practices.

Located within the Justice Department's Civil Rights Division, the OSC is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act. That provision covers four areas: citizenship status discrimination in hiring, firing, or recruitment or referral for a fee; national origin discrimination in hiring, firing, or recruitment or referral for a fee; document abuse (unfair documentary practices during the Form I-9 employment eligibility verification process); and retaliation or intimidation.

“The Office of Special Counsel is a fairly small agency within the Department of Justice,” Siskind Susser attorney Bruce Buchanan told Bloomberg BNA Jan. 21. “Because employers don't see as much of them, they're not a focus.”

He said he “wouldn't be shocked” to learn that most employers don't even know what the agency is.

Enforcement ‘Ramping Up.'

While the OSC started off small, in more recent years it has been ramping up enforcement, Buchanan said.

A spokesman for the DOJ told Bloomberg BNA Feb. 1 that the OSC has entered into 80 settlement agreements since fiscal year 2012. The office also has filed eight complaints with the Office of the Chief Administrative Hearing Officer, an administrative body within the DOJ's Executive Office for Immigration Review.

OCAHO also handed the OSC two victories, in 2014 and 2015, the spokesman said. In United States v. Life Generations Healthcare, LLC, DOJ OCAHO, No. 11B00136, 9/11/14, OCAHO found that an employer had engaged in a pattern or practice of discrimination against foreign-born applicants and employees when completing the I-9 employment eligibility verification form.

The parties reached a settlement over the remedy for the violation, with Life Generations Healthcare agreeing to pay $88,687 in civil penalties and $119,313 in back pay to the affected employees.

In United States v. Estopy, DOJ OCAHO, No. 12B00011, 6/10/15, OCAHO held that the employer discriminated against qualified U.S. workers by preferring H-2A agricultural guestworkers (114 DLR A-4, 6/15/15). OCAHO later held that the farm was liable for the maximum civil penalty of $3,200 160 DLR A-4, 8/19/15).

There aren't many OSC-driven discrimination cases that make it into litigation before OCAHO, and “almost nothing” makes it up to the federal appeals courts, Buchanan said.

But he said other OCAHO cases originate with the OSC and are brought by employees who are given the equivalent of a right to sue letter from the Equal Employment Opportunity Commission.

Settlements More ‘Creative,' Amounts Higher

Buchanan also told Bloomberg BNA that “the amount of money” involved in the OSC's settlements appears to be increasing, and the terms of the settlements have gotten more “creative.” The OSC also has started targeting some more “high profile” employers, he said.

McDonald's, for example, settled with the OSC in November 2015 by agreeing to a $355,000 civil penalty and “undetermined” amount of back pay for anyone adversely affected by the company's illegal attempt to re-verify the employment eligibility of workers with green cards (224 DLR A-9, 11/20/15).

In October 2015, Miami-Dade County Public Schools in Florida settled with the OSC for $90,000 in civil penalties and $125,000 in back pay. The “creative” part of that settlement was the requirement that the school system arrange for training on workers' rights for its high school students and also at five of its English for Speakers of Other Languages education centers, Buchanan said.

Also in October 2015, Yellow Checker Star Transportation Co. in Las Vegas settled for $445,000 in civil penalties, which a DOJ spokesman said is the largest OSC settlement amount to date. Buchanan added that the taxi company also agreed to place six full-page, color advertisements in a monthly trade magazine that contain information about the OSC's work.

OSC Checks ‘More Burdensome' Than I-9 Audits

It's not just the settlement terms that can be problematic for employers, Fragomen, Del Rey, Bernsen & Loewy attorney Dan Brown said. The OSC always issues press releases and makes public its settlement agreements and OCAHO judgments, which can damage an employer's reputation, he told Bloomberg BNA Jan. 29.

Furthermore, OSC investigations—even those that don't result in discrimination charges—are “far more burdensome” than an inspection of I-9 employment eligibility verification forms by Immigration and Customs Enforcement, Brown said.

“Most classically” an OSC investigation is triggered by an employee's discrimination complaint, Brown said, but the office has its own independent investigative authority and is shifting to being “investigation-focused rather than complaint-driven.”

In addition, it's becoming “more and more common” for OSC to initiate investigations after referrals from U.S. Citizenship and Immigration Services based on an employer's use of the E-Verify employment eligibility verification system, he said.

For example, E-Verify might show that all of an employer's lawful permanent resident employees have presented a green card to prove work authorization. That “might be evidence that the employer is requiring those documents, rather than giving them a choice” as is required under the law, Brown said.

Therefore, E-Verify is capturing data and giving the OSC a “more ready source” of information on “larger-scale potential document abuse practices,” he said.

Trying to Do the Right Thing

“I hardly ever see situations where there's some sort of intentional discrimination,” Scott Decker, an attorney with Greenberg Traurig in Atlanta, told Bloomberg BNA Jan. 29. “It almost always is a situation where people think they're doing the right thing and just not realizing it's not.”

The “most common scenario,” Decker said, is an employer asking foreign workers for extra documents to prove work authorization on the “mistaken belief” that if a little bit of I-9 compliance is good, a lot of compliance is even better.

Just because someone can prove that he or she is work-authorized in three different ways doesn't mean an employer has to ask for all of them, Decker said. “Once you've proven it, that's all you need,” he said.

Decker cautioned that employers “burned in the past” by an ICE I-9 audit may decide to “go 110 percent” on I-9 compliance in the future. But in doing so they may not realize that the extra 10 percent “can also get you in hot water,” he said.

A DOJ spokesman told Bloomberg BNA Feb. 1 that the OSC encounters more discrimination during the I-9 process than during hiring and firing. The office also is more likely to receive calls on its hotline that relate to potential document abuse rather than hiring, firing or recruiting discrimination, he added.

The spokesman pointed out, however, that these figures are based on what the OSC encounters and may not reflect the actual most common violations that occur.

Internal I-9 Audit Guidance Welcome

The recent guidance jointly issued by the OSC and ICE on conducting internal I-9 audits properly is a welcome development, practitioners told Bloomberg BNA.

“Both agencies are working hard to encourage employers to do internal I-9 audits,” Buchanan said. Many employers have been reluctant to “self-enforce” because they didn't really know the guidelines on what to do “if certain issues arose” during the process, he said.

According to Buchanan, a lot of the information in the guidance was already public in some form, but there hasn't previously been a “go-to document” that could be consulted.

“It's a very welcome release because we have always advised clients to conduct internal I-9 audits to make sure they have a good understanding” of their I-9 practice, Decker said. Many employers have good policies and procedures, but they're not always implemented on the ground, he said.

The “main advantage” of the guidance is having it issued jointly by ICE and the OSC, Decker added. He said “there's always been a tension in immigration law” between work authorization compliance and avoiding discrimination.

Potential Bias Through Outsourcing

Brown told Bloomberg BNA that the OSC's latest technical assistance letter on the discrimination implications of replacing U.S. workers with foreign workers is “interesting.” In the letter, the OSC states that there could be illegal discrimination in certain factual circumstances (248 DLR A-6, 12/29/15).

Decker, however, pointed out that the anti-discrimination provision of the INA only contemplates intentional discrimination, not an otherwise neutral policy that has a disparate impact on a particular group.

The way it “usually works” is that an employer is trying to save money and decides it can do so through outsourcing, Decker explained. The outsourcing company tells the employer it can cut costs, and it just so happens that its hiring model is to employ primarily foreign guestworkers, he said.

A potential discrimination charge could arise if there's some knowledge on the part of the employer that the cost cutting is being accomplished because foreign workers are replacing U.S. workers, Decker said.

Brown said the OSC would consider knowing replacement of U.S. workers with foreign workers to be intentional discrimination, even if there's no “bad animus” against either group. The OCAHO decision in Life Generations Healthcare found liability despite a lack of animus against foreign workers because they were targeted based on their citizenship status, he said.

Be Clear, Consistent, Proactive

The “most important” thing that employers can do to avoid an OSC discrimination charge is to have “clear and consistent policies and procedures” that are carried out as uniformly as possible and to follow the I-9 and E-Verify rules as closely as possible, Brown told Bloomberg BNA.

Employers that are thinking of taking adverse action against an employee because of an immigration status problem should consult with counsel ahead of time, he said.

“You have to be proactive with your compliance policy,” Decker said. “It's not good enough just to be reactive and make things better once there's an investigation.”

Compliance must be made a “cornerstone of hiring,” Decker added, and employers should “lead from the top on it.” A big weakness for employers is leaving OSC-related compliance for the employee with the least experience, meaning the person lacking knowledge of all the rules is “the first and last line of defense in presenting an OSC challenge,” he said.

Decker also said most human resources software programs now have a component on I-9 compliance. Automating the process and eliminating the “human element” as much as possible allows for “a more consistent outcome,” he said.

Employers that are unaware of their obligations under the INA's anti-discrimination provision should register for a free OSC employer webinar, a DOJ spokesman said. He added that the OSC has frequently asked questions posted on its website.

Employers that are more familiar with the provision can turn to guidance documents, information about the OSC's enforcement activity and technical assistance letters, the spokesman said. In addition, employers can call the OSC's free employer hotline at 1-800-255-8155 (TTY 1-800-237-2515).

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com