How to Ensure Compliance With INA’s Antidiscriminatory Provisions
This blog post is an excerpt from an article authored by Carl Hampe and Patrick Shen, partners in Fragomen Worldwide’s Government Strategies and Corporate Compliance Group. The article is a supplement to CUPA-HR’s April 2014 webinar “Form I-9 Requirements: Why Compliance Matters.”
Since 2009, the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been increasing steadily its enforcement of the antidiscriminatory provisions under the Immigration and Nationality Act (INA). Created by the Immigration Reform and Control Act of 1986 (IRCA), the purpose of the OSC is to be a countermeasure to IRCA’s introduction of employer sanctions for hiring unauthorized workers and the obligation to verify eligibility to work on Form I-9.
However, many of the behaviors that OSC has sought to penalize are not intuitively “discriminatory” to most employers. Consequently, many of the largest and most sophisticated U.S. employers, including higher education institutions, inadvertently “discriminate” in the eyes of OSC in their hiring or verification process. Complicating the situation is the Department of Homeland Security (DHS)’s escalating enforcement against unauthorized employment and focus on paperwork errors in the employment eligibility process (on Form I-9). Employers with lax verification policies have received hefty civil penalties from DHS, but some who are too cautious have also been charged with “discrimination” by OSC.
Prohibited Practices and Protected Persons Under the INA
National origin discrimination – Under the INA, employers may not discriminate when hiring or firing based on place of birth, country of origin, ancestry, native language, accent or because the individual is perceived to be “foreign.” (Note that this applies only to employers with four to 14 employees. This provision complements the jurisdiction of the EEOC over larger employers.)
Citizenship status discrimination – Employers further may not discriminate when hiring or firing based on citizenship status. Only specifically protected persons have standing to allege citizenship (immigration) status discrimination. They are U.S. citizens, lawful permanent residents who applied for naturalization within six months of eligibility, asylees and refugees, and beneficiaries of IRCA’s legalization programs.
Document abuse – While completing or updating Form I-9, an employer may not demand more or different documents from the employee as long as the employee presents documents that are legally acceptable (demanding a DHS-issued “immigration” document because the employee is not a citizen is an example of document abuse). One does not need to be a protected person, only eligible to work, to allege document abuse.
Retaliation and intimidation – There is also a prohibition against retaliation, intimidation, coercion or threats against a person who asserts his or her rights under IRCA’s antidiscrimination provisions. The protection extends to any person, not only employees and not only protected persons.
Cause for Investigation
OSC may initiate an investigation based on: 1) a charge by an individual party or an organization representing workers’ interests; 2) a referral from DHS’s E-Verify Monitoring and Compliance Unit which monitors if employees’ pattern of usage suggests possible discrimination; 3) a referral from another government agency, such as EEOC; or 4) an “independent investigation” on its own initiative or as a follow-up to a previous individual charge. Usually, independent investigations target “pattern or practice” of discrimination.
Areas of Recent OSC Enforcement Focus
Over-documentation at the time of initial verification – This occurs most often when the employer mistakenly believes that a non-citizen employee must produce a DHS-issued immigration document, such as a green card or an employment authorization document. OSC often looks at a disproportionately high percentage of noncitizens producing DHS-issued documents to complete Form I-9 as evidence of such discriminatory pattern.
Unnecessary reverification – Some employers confuse the concept of expiring document with expiring work authorization and ask permanent residents to update their I-9 forms when a green card expires — even though they are authorized to work indefinitely. OSC considers this to be intentional discrimination or disparate treatment based on citizenship status if U.S. citizens are not also asked to update Form I-9 when their passports expire.
Improper citizenship (immigration status) requirement or preference – One common violation of the antidiscrimination provisions under INA is limiting hiring to U.S. citizens when no law or government contract requires such limitation. Conversely, OSC also examines job opening announcements for preference of non-immigrant visa holders over U.S. workers.
See the full article for recent cases the OSC has brought against higher ed institutions.
The Best Offense Is a Good Defense
Employers can meet their verification and antidiscrimination obligations not only by possessing a keen awareness of the regulations and enforcement trends, but also by putting in place clear policies and procedures to ensure compliance with both obligations.
Document nondiscriminatory reasons for employment decisions – Employers may have many legitimate reasons for making personnel decisions that are unrelated to immigration status. A well-documented memorandum for the employer’s action may be sufficient to rebut an allegation of discrimination.
Have a clear policy and training protocol in place to refute allegations of company-wide discriminatory policy or practice – If the employer has a clear policy of nondiscrimination and keeps records on staff training, OSC will find it more difficult to establish an institutional intent to discriminate.
Establish a protocol for legal counsel to review job opening announcements – In several instances during recent years, American companies with workforces that consist overwhelmingly of U.S. workers had to settle charges of preferential hiring in favor of foreign visa holders over protected workers. Quite often, an investigation into the circumstances showed that the problem was not discriminatory hiring, but poor choice of words in the recruitment process. Employers must draft their job opening announcements carefully and avoid language that could be misconstrued as such improper preference. Any advertisement to fill open positions should be reviewed by the employer’s in-house or external counsel to avoid such costly a misunderstanding.
Narrow the scope of investigation – OSC usually begins its investigation with an extensive list of informal interrogatories and discovery requests. Although OSC does not share a copy of the charging document, employers generally are able to determine the theory of OSC’s case from its questions and document requests. In many cases, employers are able to narrow the scope of OSC’s request by showing cooperation with the investigation. More often than not, employers who cooperate are able to satisfy OSC that no discrimination occurred after a round or two of document production and witness interviews.
Assert jurisdictional defenses – OSC must have subject matter jurisdiction, and the charging party must have standing. However, it is equally important to understand the process and identify other areas where the employer still may be vulnerable. The defensive strategy must include ways to minimize risk of further investigation by OSC or another agency through other avenues. For example, an employer may move to dismiss a national origin claim because of the employer’s size, but OSC can refer the charge to EEOC, and the employer may in effect trade one lengthy investigation for an even lengthier one. In addition, an employer may assert lack of standing if a charging party does not have standing as a protected person, but OSC can use that individual’s charge as a vehicle to look into a broader pattern or practice of discriminatory behavior. Therefore, when asserting jurisdictional defenses, be aware of other actions that can be taken against the employer.
For more on the INA’s antidiscrimination provisions and OSC’s jurisdiction, read the full article. For resources related to e-verify and Form I-9, see the I-9/E-Verify toolkit in the CUPA-HR Knowledge Center and the association’s I-9 Reciprocal Processing Consortium (there are currently 315 participating institutions, and there’s no cost for the service). And be sure to also check out the new Hiring Nonresident Aliens toolkit in the Knowledge Center.