Avoid Costly Mistakes Through Compliance with INA’s Anti-Discrimination Provisions

Introduction

Since 2009, the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been increasing steadily its enforcement of the anti-discriminatory provisions under the Immigration and Nationality Act. Created by the Immigration Reform and Control Act of 1986 (IRCA), the purpose of the OSC is to be a countermeasure to IRCA's introduction of employer sanctions for hiring unauthorized workers and the obligation to verify eligibility to work on Form I-9.[1]

Over the past six years, employers across the country have paid collectively millions of dollars to settle discrimination allegations. To illustrate the increase, OSC collected no monetary penalties from employers in 2007, $45,000 in 2008, and $1,150,000 in 2013.[2]

However, many of the behaviors that OSC sought to penalize are not intuitively "discriminatory" to most employers. Consequently, many of the largest and most sophisticated U.S. employers inadvertently "discriminate" – in the eyes of OSC – in their hiring or verification process. Complicating the situation is the Department of Homeland Security's (DHS) escalating enforcement against unauthorized employment and focus on paperwork errors in the employment eligibility process (on Form I-9). Employers with lax verification policies received very hefty civil penalties from DHS, but some who are too cautious were charged with "discrimination" by OSC.

Employers can meet their verification and anti-discrimination obligations with a keen awareness of the regulations and enforcement trends, and with clear policies and procedures to ensure compliance with both obligations.

The Enforcement Scheme

A. Prohibited Practices and Protected Persons

1. National origin discrimination. Employers may not discriminate when hiring or firing based on place of birth, country of origin, ancestry, native language, accent or because they are perceived to be "foreign."[3] This applies only to employers with four to 14 employees. This provision complements the jurisdiction of the Equal Opportunity Employment Commission (EEOC) over larger employers.[4]
2. Citizenship status discrimination. Employers further may not discriminate when hiring or firing based on citizenship status. Only specifically protected persons have standing to allege citizenship (immigration) status discrimination. They are U.S. citizens, lawful permanent residents who applied for naturalization within six months of eligibility, asylees and refugees, and beneficiaries of IRCA's legalization programs.[5] Unless mandated by law, employers may not limit hiring to applicants of certain immigration status, such as U.S. citizens or nonimmigrant visa holders, to the exclusion of others protected workers.
3. Document abuse. While completing or updating the Form I-9, an employer may not demand more or different documents from the employee so long as the employee presents documents that are legally acceptable. The lists of acceptable documents are attached to the Form I-9 itself. Demanding a DHS-issued “immigration” document because the employee is not a citizen is an example of document abuse. A 1996 amendment clarified that OSC must demonstrate that an employer had discriminatory intent as an element of document abuse.[6] One does not need to be a protected person, only eligible to work, to allege document abuse.[7]
4. Retaliation and intimidation. There is also a prohibition against retaliation, intimidation, coercion or threats against a person who asserts his or her rights under IRCA's anti-discrimination provisions.[8] The protection extends to any person, not only employees and not only protected persons.[9]

B. OSC's Investigative Process

OSC may initiate an investigation based on: 1) a charge by an individual party or an organization representing workers’ interests; 2) a referral from DHS's E-Verify Monitoring and Compliance Unit, which monitors employees' pattern of usage and suggests possible discrimination; 3) a referral from another government agency, such as EEOC;[10] 4) an “independent investigation” on its own initiative or as a follow-up to a previous individual charge. Usually, the independent investigations target “pattern or practice” of discrimination.

An individual may file a charge with the OSC within 180 days of the alleged discriminatory act. OSC has 10 days from accepting the charge to advise the employer in writing of the investigation. It has 120 days from receiving the charge to decide whether to file a complaint with Office of the Chief Administrative Hearing Officer (OCAHO), or dismiss the charge. If OSC cannot make a decision on or before the 120th day, it must provide the charging party of the right to bring a private action against the employer even while OSC's investigation continues.[11]

The statute of limitations for an "independent" investigation is 180 days from the time OSC files the complaint with OCAHO. OSC often tries to tie the most recent discriminatory act to prior violations by arguing that the acts are part of a "pattern," or "continuing violation." It is also very common for OSC to request a "tolling" agreement with the employer, which stops the clock from running on the statute of limitations.

During the investigative period, OSC often will engage the employer in informal discovery, where OSC would make informational, documentary and witness interview requests.[12] The OCAHO has given OSC broad investigative discretion, and this portion of the OSC process can often be the most expensive and disruptive. Some practitioners observe that OSC has weak liability case law on its side, but strong investigative case law, and thus uses the latter as leverage to force settlements out of employers that do not believe their actions are prohibited by the applicable law.

C. Areas of recent OSC enforcement focus:

1. Over-documentation at the time of initial verification. This occurs most often when the employer mistakenly believes that a noncitizen employee must produce a DHS-issued immigration document, such as a green card or an employment authorization document. OSC often looks at a disproportionately high percentage of noncitizens producing DHS-issued documents to complete the Form I-9 as evidence of such discriminatory pattern, and recent case law held that discriminatory intent may be inferred by statistics.[13]
2. Unnecessary reverification. Some employers confuse the concept of expiring document with expiring work authorization and ask permanent residents to update their I-9 forms when a green card expires – even though they are authorized to work indefinitely. OSC considers this to be intentional discrimination or disparate treatment based on citizenship status if U.S. citizens are not also asked to update the I-9 when their passports expire. OSC often receives data of such improper (or unnecessary) reverification from E-Verify data and uses this information to conduct independent investigations.
3. Improper citizenship (immigration status) requirement or preference. One common violation is limiting hiring to U.S. citizens when no law or government contract requires such limitation. Conversely, OSC also examines job opening announcements for preference of nonimmigrant visa holders over U.S. workers, mostly in the technology sector.

D. Penalties and other terms of settlement

The civil monetary penalty for intentional discrimination can be as low as $375 or as high as $16,000 per person, depending on the violation history of the employer and the severity of the offense. The penalty for document abuse is comparable to that of an I-9 paperwork error, which is between $110 and $1,100 per person. There is no criminal penalty for a violating IRCA's anti-discrimination laws.

In addition to monetary penalties, employers also may be liable for back wages and other non-monetary remedies, such as mandatory training and reporting.

Recommendations for Defensive Strategy

1. Document nondiscriminatory reasons for employment decision. Employers may have many legitimate reasons for making personnel decisions that are unrelated to immigration status. A well-documented memorandum for the employer's action may be sufficient to rebut an allegation of discrimination. At a minimum, it will shift the burden back to the OSC to prove discriminatory intent.[14]
2. Have a clear policy and training protocol in place to refute allegation of company-wide discriminatory policy or practice.The penalty for a singular violation may not be significant, but OSC always looks deeper into a company's practices to identify a broader pattern of practice that would result in much more costly penalties. If the employer has a clear policy of nondiscrimination and keeps records on staff training, OSC will find it more difficult to establish an institutional intent to discriminate."Discrimination" in OSC's view does not have to be animus towards a particular group. Instead, OSC argues, any disparate treatment at all may be deemed discriminatory. This underscores the importance of a well-articulated and implemented company policy.
3. Establish a protocol for legal counsel to review job opening announcements. In several instances during recent years, American companies with workforces that consist overwhelmingly of U.S. workers had to settle charges of preferential hiring in favor of foreign visa holders over protected workers. Quite often, an investigation into the circumstances showed that the problem was not discriminatory hiring, but poor choice of words in the recruitment process. Employers must draft their job opening announcements carefully and avoid language that could be misconstrued as such improper preference. Any advertisement to fill open positions should be reviewed by the employer's in-house or external counsel to avoid such costly a misunderstanding.
4. Narrow the scope of investigation. OSC usually begins its investigation with an extensive list of informal interrogatories and discovery requests. Although OSC does not share a copy of the charging document, employers generally are able to determine the theory of OSC's case from its questions and document requests. In many cases, employers are able to narrow the scope of OSC's request by showing cooperation with the investigation. More often than not, employers who cooperate are able to satisfy OSC that no discrimination occurred after a round or two of document production and witness interviews.

   There are times when the parties cannot agree and OSC would subpoena the information or witness. OSC can enforce the subpoena in federal district court, at which time the employer may attempt to quash the subpoena. Employers also have an additional avenue of redress by asking OCAHO to revoke or modify a subpoena.[15] Keep in mind that unless the employer can show good faith cooperation earlier in the process and the unreasonableness of OSC's request, most judges have been reluctant to limit the government's efforts to collect information.

5. Assert jurisdictional defenses. OSC must have subject matter jurisdiction and the charging party must have standing. However, it is equally important to understand the process and identify other areas where the employer still may be vulnerable. The defensive strategy must include ways to minimize risk of further investigation by OSC or another agency through other avenues. For example, an employer may move to dismiss a national origin claim because of the employer's size, but OSC can refer the charge to EEOC, and the employer may in effect trade one lengthy investigation for an even lengthier one. In addition, an employer may assert lack of standing if a charging party does not have standing as a protected person, but OSC can use that individual's charge as a vehicle to look into a broader pattern or practice of discriminatory behavior. In such an instance, dismissing that one charge will not be very helpful to the employer. Therefore, when asserting jurisdictional defenses, be aware of other actions that can be taken against the employer.

Conclusion

OSC has steadily enhanced its enforcement efforts over recent years. There has been increased attention by this office on larger corporations. Through robust internal training and well-developed policies and procedures, employers can protect themselves against most allegations of immigration-related employment discrimination.