5.22.2012

Employers: Complete Form I-9 with Caution to Avoid Employee Document Abuse Claims

Typically, employers dedicate numerous man-hours ensuring that their employees are eligible to work in the United States. In order to ensure compliance, they use the Employment Eligibility Verification Form, or Form I-9. The form appears easy to complete, but there are many ways to complete it incorrectly. The dramatic increase in Form I-9 audits by the U.S. Immigration and Customs Enforcement (ICE) finds many employers eager to satisfy their legal obligations, but, in the process, they inadvertently commit one less-known prohibited act under the Immigration Reform and Control Act of 1986 (IRCA): document abuse. This violation is often the result of an employer’s zealous efforts to determine a worker’s employment eligibility, and is subject to investigation and prosecution by the U.S. Department of Justice’s (DOJ) Office of Special Counsel (OSC). Employers are prohibited from engaging in certain practices, including asking foreign-looking applicants for more or different documents than are required from other workers, instructing applicants on which documents to provide for Form I-9 verification, and seeking to reverify documents that are not subject to reverification. The OSC is generally made aware of this practice through complaints filed by the affected employees.
On May 7, 2012, OSC reported that it had reached an agreement with an Ohio corporation located in Groveport, Ohio, resolving allegations that the company discriminated when it fired one of its employees in connection with the “reverification” of his employment eligibility.
In a complaint filed with the DOJ, the employee, a lawful permanent resident, alleged that the employer improperly terminated him after he failed to produce an unexpired lawful permanent resident card, also known as a “green card,” during the reverification of his employment eligibility status for purposes of Form I-9. The employee had originally presented a valid lawful permanent resident card when he was hired, and alleged that his reverification, along with the request for a specific document, was unlawful under the anti-discrimination provision 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 reverification.
Under the settlement agreement, the employer agreed to pay $20,169 in back pay plus interest to the charging party and $600 in civil penalties to the United States. The employer further committed to comply with the law and to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process. Finally, the employer will be subject to reporting and compliance monitoring requirements for 18 months.
It is therefore important that employers remain well versed on I-9 employment verification procedures and that they establish internal policies that are consistent, regardless of the employees’ nationality or citizenship status. This way, they will be able to avoid future problems during an audit or investigation.

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