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A New Pressure on Employers from Feds: I-9 Discrimination

Aug 25, 2014

U.S. Department of Justice is increasingly scrutinizing employer I-9 practices for discrimination against immigrant workers.

Anthony Raimondo 2010 06 photo

By Anthony P. Raimondo, attorney

Agricultural employers continue to struggle with compliance under a hopelessly broken immigration system that criminalizes employers for hiring the workers who are available and willing to work, and criminalizes immigrant employees who just want to work and try to make a better life for their families.

As Congress continues to fail to act on immigration, the pressure on both employers and employees in agriculture continues to grow. Now, a new pressure has been added.

The U.S. Department of Justice is increasingly scrutinizing employer I-9 practices for discrimination against immigrant workers. Conduct such as failing to provide the I-9 instructions with the form, specifying which documents are needed (i.e., "bring your drivers’ license and Social Security Card"), or requesting more documents than required (i.e. a Permanent Resident Alien Card and a Social Security Card) can lead to allegations of discrimination.

When completing an I-9, employees are entitled to choose to present any one document from List A, or any List B document and any List C document. An employer may not refuse to accept documents that reasonably appear genuine on their face and then request other documents from the employee. It is very common for employers to take a Permanent Resident Alien card (List A) and also take a Social Security Card (List C). If a List A document is provided, no further documents are necessary.

It appears that the federal government may be taking a greater interest in document abuse and immigration discrimination cases. In April 2014, a Dallas-area concrete company agreed to pay $115,000 in civil penalties, undergo training on the anti-discrimination provisions of immigration law, revise its internal policies, and be subject to government oversight for one year to resolve a federal government investigation. The investigation started because of a referral from the U.S. Citizenship and Immigration Services (USCIS), likely because of information uncovered in an I-9 audit. The government concluded that the company subjected non-citizen new hires to unlawful demands for specific documentation, while U.S. citizens were permitted to present their choice of documentation. The employer also selectively utilized E-Verify to confirm the employment eligibility of individuals they knew or believed to be non-U.S. citizens or foreign born.

"Employers cannot create discriminatory hurdles for work-authorized non-U.S. citizens or naturalized citizens in the employment eligibility verification process, which includes the E-Verify program," said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division. "The Department of Justice is committed to protecting U.S. citizens and all work-authorized immigrants from document abuse."

In June, the Department of Justice negotiated a settlement with a Colorado janitorial company that resolved claims of immigration related discrimination. Specifically, the company required more documentation from non-citizens than was required of citizens. The settlement included payment of more than $50,000 in civil penalties and $25,000 back pay to compensate individuals who may have lost wages due to the discriminatory practices. The government also demanded the right to monitor the business’s employment eligibility verification process for one year.

Of greatest concern, the DOJ found in a separate investigation that a nursing home engaged in document abuse because required lawful permanent resident aliens to present a new green card after the old one expired, even though such reverification is unlawful.

Permanent residents have permanent work authorization in the United States that does not expire when the cards expire, much like a citizen’s work authorization does not lapse when a passport expires. While a permanent resident alien card must be valid at the time of hire, the form does not needed to be updated when the card expires. The nursing home also required permanent residents to produce proof of citizenship if they became naturalized citizens, even though this practice is prohibited by law. The case was settled for $14,500 in civil penalties, training on the anti-discrimination provision of the INA, establishment of a back pay fund, and two years of government oversight.

Employers must be sure to understand how the I-9 works, what documents are required (and what are not), and should make sure that employees processing new hires are properly trained. A great resource is the USCIS "I-9 Handbook for Employers" (Form M-274), available at www.uscis.gov Employers must be careful not to specify what documents are needed, and must be careful not to re-verify documents that do not require re-verification.

The goal of this article is to provide employers with current labor and employment law information. The contents should not be interpreted or construed as legal advice or opinion. For individual responses to questions or concerns regarding any given situation, the reader should consult with Anthony Raimondo at Raimondo & Associates in Fresno, at (559) 432-3000.

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