"Unfair Documentary Practices" May Increase Immigration Discrimination Claims

The United States Department of Justice (“DOJ”) issued a proposed rule that would: (1) expand employer liability for engaging in “unfair” eligibility verification practices; and (2) allow up to five (5) years to bring a complaint against a company for such alleged violations.[1] 

Employers must verify new hire employment by completing a Form I-9 to establish the employee’s identity and ability to work in the United States.[2]  Employees are permitted to choose which documents they provide to satisfy Form I-9’s requirements.  “Documentation abuses” may occur, however, if an employer requires an employee to provide specific or additional documents, or refuses to honor documents that appear reasonably genuine.[3]  For example, an employer may be subject to liability if it required an employee to provide a Permanent Resident Card in addition to a social security card and drivers’ license to complete the Form I-9, because the employer has a practice of asking for a Permanent Resident Card for employees with “foreign sounding” last names.  The employee could file his charge of discrimination within 180 days and employers found liable for such discrimination could face civil penalties between $110 - $1,100 per violation.[4]

The DOJ proposes to replace the term “documentation abuses” (a term that denotes intentional harm) with “unfair documentary practices” (a term that does not suggest intent),[5]  which could impose liability if the employer treats an employee differently, regardless of whether such treatment is because of animus or hostility.[6]  Such a rule change would open the door for discrimination claims against employers for documentation that have an “unfair” result, but were not intended to cause harm.[7] 

Under the rules the OSC could waive the 180-day limitations period and permit the employee to file a charge of discrimination against the employer for up to five (5) years after the alleged violation.[8]  Employers may find that they unintentionally violated the rule if, during the employment verification process, an employer asks one employee to provide specific Form I-9 documents, but permits another employee to provide any document from the Form I-9’s approved document list.  Although the employer obtained the approved documentation for both employees, it still might find itself involved in litigation because of the inconsistent process used for employee verification.

Employers may provide public comment to the proposed rule until September 14, 2016 by clicking on the following link or going to: http://www.regulations.gov/comment?D=DOJ-CRT-2016-0020-0001.  Campbell Litigation will continue to monitor the proposed rule and report back when further updates are available.

[1] Standards and Procedures for the Enforcement of the Immigration and Nationality Act, 81 Fed. Reg. 53,965 (proposed Aug. 15, 2016) (to be codified at 28 C.F.R. §§ 0, 44). See also https://www.federalregister.gov/articles/2016/08/15/2016-18957/standards-and-procedures-for-the-enforcement-of-the-immigration-and-nationality-act. The complaint could be brought by the DOJ’s Office of Special Counsel (“OSC”) or an individual.  The OSC would also have the ability to conduct an investigation up to five (5) years after an alleged violation.  The OSC will also switch its name to the Immigrant and Employee Rights Section after it publishes the final rule.

[2] See 8 U.S.C. § 1324a(b); https://www.uscis.gov/sites/default/files/files/form/i-9.pdf.

[3] 28 C.F.R. § 44.200(a)(3).

[4] See 28 C.F.R. § 44.300; see also 8 C.F.R. § 274a.10.

[5]See https://www.federalregister.gov/articles/2016/08/15/2016-18957/standards-and-procedures-for-the-enforcement-of-the-immigration-and-nationality-act; 28 C.F.R. § 44.300.

[6] Id.

[7] Allen Smith, Justice Department Regulations Will Intensify Enforcement, Society for Human Resources Management (Aug. 18, 2016).

[8] Id.