August 1, 2011

I-9 Document Abuse And Discrimination Claims, Have You Checked Your Company's Policies Lately?

The Department of Justice, Office of Special Council has been busy this year addressing complaints filed under the anti-discrimination provisions of the Immigration and Nationality Act and the Immigration Reform and Control Act of 1986 (IRCA). The IRCA established the employment verification system and Form I-9 standards that apply to all U.S. employers. The Act includes provisions that protect work authorized individuals against employment discrimination on the basis of citizenship status or national origin discrimination, including discrimination in hiring based on the employment eligibility verification (Form I-9) process.

Most recently, on July 21, 2011, the Justice Department settled discrimination allegations brought against a Louisiana industrial services company, Brand Energy and Infrastructure Services, and its subsidiary, Industrial Services LLC (ISI).

A former employee filed a complaint against ISI alleging that the company engaged in a pattern or practice of discrimination against non-citizens, in the hiring and employment eligibility verification process. The investigation was initiated when ISI terminated an employee who was work authorized. The individual lost his job when he was unable to comply with ISI’s request to provide specific employment documentation, beyond what was required by law. Results from the investigation established that at least one ISI office required all newly hired employees who were not U.S. citizens, to present specific documents issued by the Department of Homeland Security. In sharp contrast, the company did not require U.S. citizens to present any specific documents. ISI’s actions violated the anti-discrimination provision of the IRCA, wherein an employer is prohibited from discriminating, whether intentionally or unintentionally, against a work authorized employee during the hiring and employment eligibility verification process. The IRCA specifically includes guidelines on how the Form I-9 is to be completed and how documents must be collected and reviewed.

As part of the settlement, ISI agreed to pay $43,560 in civil penalties and $7,200 in back pay, plus interest, to the employee who was terminated. In addition, Brand and ISI also agreed to monitoring provisions, as well as training for their human resources personnel. Undoubtedly, the agreement to monitor and train its human resources personnel will further tax the company’s resources, and the negative press garnered by the investigation may, for the time, shift the business community’s attention on Brand/ISI’s employment policies.

So how can you and your company minimize exposure and or avoid a similar outcome?

• If there is no company compliance policy - develop one.
• If a policy is in place - review it on a regular basis to ensure the policy is compliant with any changes in the law.
• Train, train, train, train - investing in your employees can be the first and best line of defense.
• Conduct internal reviews of company I-9 records and procedures, and provide annual training and refresher courses to your human resources personnel and any employee involved in the hiring and employment verification process.
• Work with the in-house counsel, or an outside counsel to further gain information on what laws have changed, and develop best practices for the company in relation to employment and immigration compliance.

Committing to, and investing in, the knowledge base of company employees is a fundamental component for the success of a company. A company’s vulnerabilities are not just found when there is a government I-9 audit. A company’s policies or lack thereof in the entire I-9 process can also create liabilities under the IRCA’s anti-discrimination provisions. A few proactive steps will truly go a long way in limiting liabilities and exposure.