Feds Take Action on Immigration-Related Issues

May 9 2014 - Discrimination, Form I-9, Hiring - Gail Cecchettini Whaley

A surge of enforcement activity from the U.S. Department of Justice (DOJ) should reinforce to employers that it’s unlawful to discriminate against new hires during the Form I-9 employment eligibility verification process.

The DOJ has already settled seven cases in Fiscal Year 2014 involving immigration-related discrimination. The DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) enforces the anti-discrimination provisions of the Immigration and Nationality Act.

This federal law prohibits:

  • Citizenship status discrimination in hiring, firing or recruitment;
  • National origin discrimination in hiring, firing or recruitment;
  • Unfair documentary practices related to verifying the employment eligibility of employees during the I-9 process (document abuse); and
  • Retaliation or intimidation.

Document abuse can include improperly requesting that employees present a particular document to establish identity or requesting that employees produce more documents than required by Form I-9.

For example, a recent settlement involved an employer who allegedly subjected non-U.S. Citizen new hires to demands for specific documentation issued by the U.S. Department of Homeland Security, while U.S. citizens were permitted to present their choice of documentation.

The OSC had a record-breaking year during FY 2013. The OSC set a new record by collecting almost $900,000 in civil penalties for immigration related discrimination, and settled 24 cases. By contrast, only 12 cases were settled in the five year period from FY 2006 to FY 2010.

Employers who violate these laws may be liable for monetary fines or the workers’ legal fees. Employers also may be required to hire or rehire workers, pay back wages or change internal policies to avoid further discrimination.

State laws also provide several protections against immigration related discrimination and retaliation, including new laws effective this year.

In other federal activity, the U.S. Department of Homeland Security (DHS) rejected the proposed design for California’s driver’s license for undocumented persons. The DHS stated that it rejected the proposed design because the design of the permit is not unique enough to distinguish the permit from regular drivers’ licenses that can be used to board commercial aircraft.

Under AB 60, a law that was passed last year, the California DMV is required to issue a driver’s license to undocumented persons who can meet certain identity and residence requirements.

AB 60 is scheduled to take effect on January 1, 2015. The DHS’ decision to reject the design of the driver’s license for undocumented persons may pose a stumbling block to implementation of the law. Until the regulations for the law are released, there are unanswered questions about the impact on I-9 verification. AB 60 provides that the card does not establish eligibility for employment.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

Get more information from HRCalifornia’s HR Library section on Verifying Eligibility. In addition, learn about new laws that enacted immigration-related protections. Not a CalChamber member? Learn more about what HRCalifornia can do for you.

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