Manufacturer’s Excessive I-9 Documentation Triggers Discrimination Liability

The Justice Department’s December 30, 2011 announcement of its negotiation of a settlement with small Georgia rug manufacturer Garland Sales Inc. (Garland) shows all businesses run big risks for violating Federal Civil Rights and other employment discrimination laws. 

The settlement highlights the growing activism of the Obama Administration in prosecuting national origin discrimination againstU.S.businesses and government agencies, as well as the careful tightrope that U.S.employers must walk to comply with federal employment eligibility verification (I-9) requirements without engaging in improper discrimination.

Garland Settlement

The Justice Department announced December 30th thatGarland has agreed to pay $10,000 in back pay and civil penalties, and to undergo training on proper employment eligibility verification practices to resolve allegations of illegal national origin discrimination and retaliation against Hispanics. 

The Justice Department had charged Garland violated federal discrimination laws by imposing unnecessary documentary requirements on individuals of Hispanic origin when establishing their eligibility to work in the United States, and by retaliating against a worker for protesting his discriminatory treatment. 

According to the Justice Department complaint, when a naturalized U.S. citizen of Hispanic descent, applied for a job with Garland in May 2009, he presented his unexpired driver’s license and an unrestricted Social Security card—a combination of documents sufficient to prove his identity and his authorization to work in the United States. The complaint alleged that Garland demanded that the he provide his “green card,” even thoughU.S.citizens do not have green cards to prove eligibility to work.   When Garland made further requests for documents, the worker objected to the company’s demands. Garland then rescinded the job offer.   The worker, along with another individual who was denied employment with Garland when the company rejected the individual’s valid documentation, will receive full back pay out of the $10,000 settlement.

The Justice Department’s complaint also charged that Garland required newly hired non-U.S. citizens and foreign-bornU.S.citizens to present specific and added work authorization documents beyond those required by federal law.   While the Immigration and Nationality Act (INA) requires that all employers require employees to present proof of eligibility to work as a condition of employment, it also specifically dictates what collection of documentation that employers must accept as establishing eligibility to work absent some culpable knowledge by the employer of the falsity of the documentation.  Employers that fail to collect and keep the required documentation face significant civil and criminal liability. 

While meeting the required I-9 documentation requirements is a critical responsibility, employers also must exercise care to avoid imposing excessive documentation requirements that would violate the INA’s non-discrimination rules. 

The INA requires employers to treat all authorized workers in the same manner during the hiring process, regardless of their national origin or citizenship status.   In the absence of factual evidence that would cause an employer to reasonably question the validity of documentation that otherwise would satisfy the I-9 documentation requirements, employers generally must accept any combination of documents sufficient to establish eligibility to work under the I-9 rules as sufficient.   

Discrimination Obama Administration Priority

Enforcing discrimination laws is a high priority of the Obama Administration.  Business leaders increasingly must recognize the need to tighten procedures to manage discrimination risks.  

The Garland settlement joins a lengthy list of settlements and other actions by the Obama Administration against businesses and government entities for alleged violations of U.S.civil rights and other nondiscrimination laws.  See, e.g. New Obama Administration Affirmative Action Guidance Highlights Organization’s Need To Tighten Nondiscrimination Practices; OFCCP Proposed Increased Disability Hiring Targets, Other Tougher Government Contractor Rules another Sign Of Rising Employment Discrimination RisksIncentives To Get Employee Into Wellness Education Requires Legal Risk Management; New School Racial Accommodation Guidance Gives Important Insights For Schools & Other Organizations On Obama Administration Affirmative Action Enforcement; Justice Department Landlord Suit Shows Businesses Face Rising Disability Discrimination Enforcement Risks.

These regulatory, audit, enforcement and other actions show that private businesses and state and local government agencies alike should exercise special care to prepare to defend their actions against potential disability or other Civil Rights discrimination challenges.  All organizations, whether public or private need to make sure both that their organizations, their policies, and people in form and in action understand and comply with current disability and other nondiscrimination laws.  When reviewing these responsibilities, many state and local governments and private businesses may need to update their understanding of current requirements.

Because the scope and applicability of disability and various other federal nondiscrimination and other laws have been expanded or modified in recent years by statutory, regulatory or enforcement changes, risk management efforts should begin with an assessment of the adequacy of existing policies and practices in light of the latest rules and enforcement actions.  Based on this assessment, business and governmental organizations should update policies and procedures as required, tighten documentation, and conduct ongoing, well-documented audits and training to mitigate exposures. 

In addition to following these general requirements, when dealing with eligibility to work documentation under the I-9 requirements,U.S.employers also should adopt and follow evenhandedly clearly established and communicated policies requiring employees to present required documentation. Employers should treat the I-9 eligibility requirements as satisfied if applicants and employees presenting a combination of documents sufficient under the INA to meet the eligibility to work documentation requirements unless the documents on the face provide a reasonable basis for calling into question the validity of the documentation or the employer otherwise has specific, credible factual information that would prompt a reasonable employer to question the veracity of the documentation presented.  The national origin of the applicant or employee should not be the basis for requiring additional proof or questioning the validity of documentation presented.  

Employers with highly diverse workforces or otherwise concerned about being questioned about compliance with I-9 work documentation requirements should consult with qualified legal counsel about the potential advantages of participating in the E-Verify Program or establishing and administering other uniformly administered practices to verify identity and the validity of documentation presented.  In all cases, such employers should make sure that their I-9 verification practices are carefully tailored and maintain proper documentation to make sure their ability to comply with both the verification and the nondiscrimination requirements of federal law. 

For Help With Compliance, Risk Management & Defense

If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other  internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.

Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 24 years of work helping employers and other management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; and others design, administer and defend innovative workforce, compensation, employee benefit  and management policies and practices. Her experience includes extensive work helping employers carry out, audit, manage and defend union-management relations, wage and hour, discrimination and other labor and employment laws, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions.  The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on management, re-engineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters.  She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications. For more information about Ms. Stamer and her experience or to get access to other publications by Ms. Stamer see here or contact Ms. Stamer directly.

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©2011 Cynthia Marcotte Stamer.  Non-exclusive right to republish granted to Solutions Law Press.  All other rights reserved.

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