Avoiding Citizenship Discrimination: Recent Fines Highlight Need to Review Company I-9 Policies

Last week, a California farm labor contractor agreed to pay the U.S. Department of Justice’s Office of Special Counsel (OSC) a penalty of $320,000 for allegedly discriminating against U.S. permanent residents. The OSC claims that Luis Esparza Services, Inc. required green card holders to present specific documents when verifying their work eligibility because of their citizenship status, in violation of the Immigration and Nationality Act.

Under the law, employers must verify an employee’s identity and work eligibility on Form I-9 within three days of hire. However, employers cannot tell employees which documents to present. Telling employees who are not U.S. citizens that they must present certain documents to show their work eligibility during the hiring process is citizenship status discrimination. For example, when discovering that an employee is a U.S. permanent resident, the employer cannot require that employee to produce his or her green card to establish work eligibility. It’s important to note, though, that only U.S. citizens, permanent residents, refugees and asylees are protected from citizenship status discrimination; this law does not extend to nonimmigrants (such as employees in H-1B status) or individuals who are undocumented.

Although it’s not clear whether Luis Esparza Services, Inc. was enrolled in E-Verify, OSC appears to be stepping up its enforcement efforts in part due to access to E-Verify statistics. Based on a 2010 agreement, U.S. Citizenship and Immigration Services refers discrimination matters to the OSC along with relevant information from the E-Verify system. Therefore, if an employer always indicates that U.S. permanent residents verify their employment eligibility by presenting their green cards, this can raise a red flag in E-Verify prompting an investigation.

Particularly because of this increased enforcement, Grzeca Law Group encourages employers to have a formal I-9 policy in place, as well as standard operating procedures if the company is enrolled in E-Verify. In addition, employers should regularly train everyone who completes I-9s and enters information into E-Verify to ensure that they aren’t inadvertently violating the law. It can be tough to walk the line between ensuring that employees are eligible to work while also being careful not to discriminate through improper document requests. However, having written policies and a track record of training can show an employer’s good faith effort to comply with the regulations.

Please contact us at clients@grzecalaw.com with any questions about I-9 compliance or preventing inadvertent citizenship status discrimination at your company.

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