Today’s fun fact – as an employer you cannot ask employees to provide a specific document or documents when completing section 2 of the Form I-9 (the Employment Eligibility Verification form). Remember, all employers must complete a Form I-9 for new hires within three business days of hire. Section 2 of the Form I-9 is where the employee must present the employer with documentary proof of identity and work authorization by selecting a document, or documents, from the Lists of Acceptable documents. Employers cannot tell employees what document(s) to present. As an employer, your responsibility is to show the list to employees and have them select which document(s) they will present for section 2 completion.
Why is this a problem? Because, when an employer requires certain documents from some individuals but not others this can lead to a claim of discrimination under the Immigration and Nationality Act (INA). Discrimination based on national origin or citizenship. These types of claims are handled by the Department of Justice’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices.
To prove my point, the Department of Justice recently settled an immigration-related discrimination claim against a pizza restaurant franchisee with 31 locations in Florida for $140,000. Why? Well, the allegation was that the employer routinely requested that lawful permanent residents produce a specific document to prove their work authorization—their permanent resident card—while not asking the same of U.S. citizens. This is not acceptable.
And, as if paying a civil penalty of $140,000 isn’t enough, under the terms of the settlement, the pizzerias must “post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.” In addition to the civil penalties, factor in attorney’s fees for legal representation.
A quick refresher on completing section 2 of the Form I-9 for someone who checks in section 1 of the Form I-9 that they are a lawful permanent resident (aka “green card holder”). That employee may then, for purposes of completing section 2, present either a permanent resident card (a List A document) or a driver’s license and unrestricted Social Security Card (List B and List C documents). Just because they say they are a lawful permanent resident does not mean they must provide their permanent resident card. An employer cannot tell that individual what specific document(s) to present. The Lists of Acceptable Documents are part of the Form I-9 which can be found on U.S. Citizenship and Immigration Services website.