The Department of Justice announced a settlement agreement with United Natural Foods Inc. resolving allegations that the company discriminated against employees when it impermissibly re-verified the work authorization of lawful permanent residents and required some non-citizen workers to provide specific form I-9 documentation.  As part of the settlement agreement, United Natural Foods Inc. will pay $3,190 in civil penalties to the government and has already paid full back pay to the individual involved in the claim.

This case is an example of alleged “document abuse”, more technically referred to as “unfair immigration-related employment practices” in violation of 8 U.S.C. § 1324b.  A company cannot discriminate against an individual because of their national origin or citizenship status.  To avoid the long arm of the law, here are some best practices for your Employment Eligibility Verification forms (“form I-9”):

  • If an employee presents a permanent resident card as a List A document, do not ask them to re-verify their work authorization once the card expires.  See page 9 of the M-274, Handbook for Employers.
  • If an employee presents appropriate List A or List B and List C documents when completing the form I-9, do not ask them to provide different documents just because they look foreign or have a foreign name…like say, my name, Montserrat (Spanish in case you are wondering).  See page 27 of the M-274, Handbook for Employers.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (part of the Department of Justice) issued a two-page best practices guide for Job Postings.  Employers should be familiar with the do’s and don’ts of job postings, whether online or in the newspaper.  Language such as “U.S. Citizens Only” or “We Prefer H1B Workers” is suspect and in some instances illegal because it can lead to discrimination based on citizenship or national origin.

For more about job postings read my post from April 12th — Acceptable Job Posting Language and Compliance with Anti-Discrimination Laws.

The Justice Department recently announced that it reached an agreement with Imagine Schools Inc. resolving allegations that the company discriminated under the anti-discrimination provision of the Immigration and Nationality Act when it fired an employee at its Imagine School in Groveport, Ohio in connection with a “re-verification” of his employment eligibility.  

The facts appear to be that the employee presented a valid lawful permanent resident card when he was hired and which was used for purposes of completing the form I-9.  So far so good. The problem it appears is that at a later date, Imagine Schools Inc. sought to re-verify his status and terminated him when he failed to produce an unexpired lawful permanent resident card.  The settlement agreement states that Imagine Schools Inc. agrees to pay $20,169 in back pay plus interest to the charging party and $600 in civil penalties to the United States.  They also agree to comply with the law, train their human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, and are subject to reporting and compliance monitory requirements for 18 months.  

Practice Pointer — do not re-verify lawful permanent residents status when their card expires and do not ask to see a specific document or documents when completing the form I-9.  Doing both or either may mean you are afoul of section 274B of the Immigration and Nationality Act.   Under the rules governing employment eligibility verification, certain documents, including lawful permanent resident cards and U.S. passports, are not subject to re-verification.    

 

When preparing a job posting it’s not unusual (as Tom Jones sang) that an employer might like to limit the number of applicants applying for the position.  Just the other day I was asked on separate occassions whether a job posting could limit the position to international candidates with valid work authorization OR to U.S. citizens.  I’ve heard different variations of these questions and I always urge extreme caution to employers when using any such wording as such language could run afoul of the anti-discrimination provisions of the Immigration and Nationality Act (INA), specifically section 274B.  These provisions prohibit hiring, firing, recruitment or referral for a fee, as well as unfair documentary practices during the form I-9 process, on the basis of citizenship, immigration status or national origin. 

You might be asking yourself, are there instances in which an employer could insert restrictive language in a job posting?  Yes, but they are very limited.  One instance is when the government tells you to do so.  In other words, if you are required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or for which the Attorney General determines it to be essential for an employer to do business with an agency or department of the Federal, State, or local government.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a letter regarding a situation where an employer could state in a job posting that the employer can only consider U.S. citizens.   OSC recommends notifying applicants that the position is limited to U.S. citizens pursuant to a government contract, assuming that is the case, and suggested the following language in those instances, “Please note that pursuant to a government contract, this specific position requires U.S. citizenship status.”

The takeaway here is that employers must be mindful of the anti-discrimination provisions of the INA and realize that just because something sounds good from an efficiency point of view, it may in fact be unlawful. And for those of you who know Tom Jones’ music, I’m not dating myself as I was a mere child when I listened to his music on a record.