Investigating Employees’ Work Eligibility May Violate Anti-Discrimination Laws, Warns Justice Department

Federal immigration law requires employers to verify the employment eligibility of their workers. It also, however, prohibits them from discriminating on the basis of national origin or citizenship status, provided that the employee is not an undocumented immigrant. The Department of Justice (DOJ), through its Office of the Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, recently offered guidance for employers regarding internal audits or other inquiries into employees’ work eligibility beyond that required by law. Any sort of employment eligibility verification policies applied unevenly or inconsistently could lead to liability under federal immigration law.

Employers are prohibited from employing unauthorized workers, and are required to verify that all employees and new hires are authorized to work in the United States. 8 U.S.C. § 1324a. Knowingly hiring or employing an unauthorized worker, which could be an undocumented immigrant or someone with a visa that does not allow employment, could result in civil or criminal penalties. Immigration authorities have created Form I-9, the Employment Eligibility Verification form, to enable employers to verify work authorization. An employee or new hire must present certain documents establishing their identity and their employment authorization. The employer is only required to examine the employee’s document and attest that it “reasonably appears on its face to be genuine.” Id. at § 1324a(b)(1)(A).

Federal immigration law also prohibits most employers from discriminating based on national origin or citizenship status. 8 U.S.C. § 1324b. It is not considered unlawful discrimination under this statute for an employer to prefer equally-qualified U.S. citizens over noncitizens with regard to hiring or recruiting. It is, however, considered unlawful discrimination for an employer to require a noncitizen to provide more or different documents than a citizen to complete Form I-9, or to refuse to accept certain documents that reasonably appear valid solely because the person is not a U.S. citizen. Id. at § 1324b(a)(6).

The OSC issued guidance regarding internal I-9 audits by employers, in the form of a letter (PDF file) dated December 30, 2013. Employers are not required to conduct such audits, but neither are they prohibited from doing so. The manner in which they conduct internal audits, however, could expose them to liability under § 1324b. Any standards or policies regarding I-9 audits must be consistent as to all employees regardless of national origin or citizenship. The OSC specifically notes that the use of “forensic techniques” or “different levels of scrutiny” could give rise to claims of unlawful discrimination.

Any discrimination claims brought under § 1324b must go through an administrative procedure with OSC before the complainant may sue. U.S. district courts in New York and New Jersey have held that § 1324b does not create any separate cause of action in federal court. See Shah v. Wilco Systems, 126 F.Supp.2d 641 (S.D.N.Y. 2000); Shine v. TD Bank Fin. Group, No. 09-4377, opinion (D.N.J., Jul. 12, 2010). An OSC investigation against a New Jersey home health care provider, which found that the company set higher employment eligibility verification standards for legal permanent residents than for citizens, resulted in a settlement agreement with back pay for the complaining employee.

If you need to speak to an employment attorney in New Jersey or New York regarding national origin discrimination or other unlawful employment practices, please contact the Resnick Law Group online, at 973-781-1204, or at (646) 867-7997.

More Blog Posts:

NYPD Takes a Stand on Hair Color Discrimination, but What Does the Law Say? The New Jersey Employment Law Firm Blog, April 30, 2013
Department of Justice Settles Immigration-Related Employment Discrimination Claims Against College, The New Jersey Employment Law Firm Blog, February 27, 2013
New York Pharmacy Law Unlawfully Discriminates Based on National Origin and Alienage, According to Second Circuit, The New Jersey Employment Law Firm Blog, January 22, 2013

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