Wisconsin Lawyer
Vol. 85, No. 7, July 2012

Your business clients might give you an incredulous look when you tell them this: it is possible to go too far when verifying a new hire's authorization to work in the United States. This article provides examples of some ways clients may, even with good intentions, cross the line between carrying out their responsibilities to ensure they are not recruiting, hiring, or retaining individuals who do not have authorization to work in the United States, and engaging in what is classified as an unfair immigration-related employment practice. The article then provides practical suggestions for how your clients may comply with their responsibilities while also not crossing the line into discrimination or other prohibited practices.

Requiring Employment Eligibility Verification

The Immigration Reform and Control Act of 1986 (IRCA or the Act), which was later amended by the Immigration Act of 1990 and the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), imposes penalties on employers who knowingly hire or continue to employ persons who are not authorized to work in the United States. Section 101 of IRCA¹ generally requires employers to have all employees hired after Nov. 6, 1986, complete section 1 ("Employee Information and Verification") of Form I-9 no later than the first day of employment (that is, the first day of paid work), to examine original document(s) that establish identity and work eligibility within three business days of the first day of employment, and to complete section 2 ("Employer Review and Verification") of Form I-9 within three business days of the first day of employment.

The basic rule for the completion of section 2 is that the employee need only present either one document from List A ("Documents that Establish Both Identity and Employment Authorization"), or one document from List B ("Documents that Establish Identity") and one document from List C ("Documents that Establish Employment Authorization"), from the List of Acceptable Documents approved by the U.S. Citizenship and Immigration Services (USCIS) and published on the current version of Form I-9.²

Given the flood of news stories about employers being heavily fined and even criminally indicted for not properly verifying whether their employees were authorized to work in the United States, many of your clients likely feel compelled to undertake extraordinary measures when undergoing the Form I-9 process with new hires. However, several recently publicized settlements involving major employers and the U.S. Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (DOJ-OSC) are a good reminder that there is also a line that can be crossed when attempting to verify that a new hire is authorized to work in the United States. Congress drew this line when it attempted to balance its demand that employers be the frontline enforcers of U.S. employment eligibility requirements against the concern that imposing this duty on employers could result in various forms of prohibited discrimination, such as national-origin discrimination.

Crossing the Line

Crossing the line into prohibited discrimination can have a significant financial impact on business clients, such as stiff civil penalties and defense costs. Some recent examples³ include the following:

1. A teaching hospital in California agreed to pay a civil penalty of $115,000 to settle a lawsuit filed against it by the DOJ-OSC for allegedly engaging in overdocumentation in violation of 8 U.S.C. § 1324b(a)(6). The complaint alleged that the hospital engaged in a pattern of discriminatory employment-eligibility practices against non-U.S. citizen employees by requiring them to produce specific kinds of employment-eligibility documents (for example, permanent resident cards), but not requiring the same of U.S. citizens. The complaint also alleged that the hospital extended its discriminatory practices when it required non-U.S. citizens (including those not subject to reverification under IRCA rules) to present specific employment-eligibility documents for reverification, despite the fact reverification was not required by law.
2. A Missouri pork processor agreed to pay a civil penalty of $290,400 to settle a similar DOJ-OSC lawsuit. The complaint alleged that the processor was discriminatorily requiring recently hired non-U.S. citizens and foreign-born U.S. citizens to provide specific work-authorization documents in violation of 8 U.S.C. § 1324b(a)(6).
3. An Alabama shipbuilder agreed to pay $53,900 in civil penalties to settle a DOJ-OSC complaint alleging that the shipbuilder engaged in a pattern of discriminatory employment-eligibility practices against non-U.S. citizen employees in violation of 8 U.S.C. § 1324b(a)(6) when it demanded that newly hired, lawful U.S. permanent residents present their permanent resident cards and refused to accept any other form of acceptable employment and identification verification documentation when completing their Form I-9s.
4. A Georgia rug manufacturer agreed to pay $10,000 in civil penalties to settle a DOJ-OSC complaint of unfair employment discrimination in violation of 8 U.S.C. § 1324b(a)(6). The rug manufacturer was alleged to have demanded that a worker of Hispanic descent provide a permanent resident card when completing his Form I-9 even though the worker presented other valid forms of employment eligibility and identity verification.

Similar fines have been imposed on a growing number of employers across the United States, because section 102 of IRCA⁴ specifically prohibits employers from engaging in what is commonly referred to as "overdocumentation" when completing section 2 of Form I-9.⁵ Overdocumentation refers to, but is not limited to, situations in which the employer:

• requests more documents than required by law to complete the Form I-9 process;
• rejects valid documents presented by an employee and instead requests specific documents preferred by the employer; or
• requests an employee to present work authorization documents more often than required.

Overdocumentation can lead to an unfair employment practice or document abuse charge that could result in a DOJ-OSC lawsuit against the employer.⁶ The potential for a DOJ-OSC enforcement action is enhanced when an employer engages in, or at least appears to engage in, overdocumentation based on an employee's actual or perceived national origin or citizenship status. For example, an employer is more likely to suffer the ire of the DOJ-OSC if, during the Form I-9 process, the employer requires new hires who it perceives to have "foreign" names or other similar distinguishing characteristics to present more or specific documentation (for example, a permanent resident card), but does not require the same of other new hires.

Avoiding Overdocumentation

To avoid a charge of overdocumentation while still ensuring that employers do not recruit, hire, or retain anyone who is not authorized to work in the United States, employers must take certain precautions during the I-9 process. Such precautions include the following:

1. Never demand that an employee present a particular document or set of documents from the Form I-9's List of Acceptable Documents. It is the employee's choice of which approved documents he or she presents. Therefore, an employee should only be asked to present either one original document from List A confirming both employment eligibility and identity, or one original document from List B establishing identity and one original document from List C establishing employment eligibility. Employers should provide a copy of the List of Acceptable Documents to new hires before their first day of paid employment so they may review and understand the Form I-9 requirements.

Employers should also provide written instructions to employees explaining that the employees will be required to present original documentation that satisfies either List A, or List B and List C, within three business days of their first day of paid work, and that it is entirely up to the employees to decide what particular documents to present. Even if an employee requests assistance, or actually dumps the contents of his or her wallet or purse onto the human resource officer's desk, the employer must still resist any temptation to specify what documents should be presented. However, the employer must reject any documents that do not meet Form I-9 requirements and demand that the employee present acceptable documents before employment may commence or continue.

2. Verify that the original documents provided by the employee are on the current Form I-9 List of Acceptable Documents, that they appear genuine and relate to the employee, that they are unexpired, and that they substantiate the employee's unexpired employment authorization.

3. Never require different or additional documentation from an employee or group of employees than what the Form I-9 regulations require. Employers must ensure their Form I-9 completion and reverification process is completely neutral and consistent, regardless of the positions involved and the characteristics of the employees involved. Employers must also be vigilant that the personnel conducting the Form I-9 process do not allow personal biases or perceptions to creep into the process so as to cause either a perception or actual practice that could give rise to a DOJ-OSC action. For example, an employer must not allow a human resource officer to improperly reject an acceptable Form I-9 document just because the officer has the perception that the type of document is often counterfeited when there is no objective reason for the belief.

4. Do not use a future expiration date of employment authorization in and of itself to determine whether an employee is qualified for a particular job. Several classes of protected individuals are issued employment authorization documents that have future expiration dates. Because these individuals are able to renew their employment authorization on a nearly automatic basis without the need for a sponsor or other similar variable, the refusal to continue their employment due to the future expiration date on their work authorization document is a discriminatory employment practice. However, employers may not accept expired employment or identification verification documentation when completing an initial Form I-9 or for reverification, regardless of whether the employee falls within a protected class.

5. Be timely when reverifying the work eligibility of employees whose work authorization is subject to expiration, but never demand reverification from employees whose employment authorization is not affected by the expiration of the document originally provided by the employee. For example, a U.S. citizen's eligibility to work must never be reverified unless his or her original Form I-9 has been destroyed by a disaster or it is discovered through an internal Form I-9 self-audit that the U.S. citizen's Form I-9 is incomplete or missing. Similarly, very few permanent residents' authorizations to lawfully work in the United States are controlled by the expiration date on their permanent resident cards. Therefore, requiring most permanent residents to undergo Form I-9 reverification when their permanent resident card expires is considered to be a form of overdocumentation.

There are only a few limited circumstances in which reverification of a permanent resident's employment eligibility is acceptable, such as when the permanent resident initially provides an immigrant visa for Form I-9 purposes or holds conditional permanent-resident status, or the resident's original Form I-9 is missing or contains incomplete information. Employers must treat all employees equally when there is a legal basis to request employment-eligibility reverification. This includes providing the same reverification response timeframes and support levels to all employees.

6. Employers are not expected to be experts in detecting falsified documents, but they are required to visually examine the presented documentation to determine if there are any features that would cause a reasonable person to doubt either the documentation's authenticity or its relation to the individual presenting it. Employers may, but are not required to, use identification-verification documentation prepared by a federal, state, or local governmental source or a commercially available source. However, employers must not be overzealous or unreasonable in their evaluation, because the unfounded rejection of valid documentation may constitute an unfair immigration-related employment practice.

Conclusion

The tightrope that lawyers must walk when advising employer-clients on how to complete and maintain the Form I-9, and that employers must walk when balancing their obligation to enforce IRCA's requirements without engaging in discriminatory or unfair immigration-related employment practices, seems to get more precarious in this age of increased enforcement. However, keeping the above recommendations in mind, and working with clients to develop and implement a comprehensive IRCA compliance policy, will provide balance during the Form I-9 process. This balance will help clients avoid negative attention from the DOJ-OSC and Immigration and Customs Enforcement while still maintaining a sufficient workforce and keeping their doors open for business.

Endnotes

¹ Codified at 8 U.S.C. § 1324a(a)(1).

² http://tinyurl.com/y4mhry.

³ Additional information about these cases can be found at www.justice.gov/crt/about/osc/htm/whatsnew.php.

⁴ Codified at 8 U.S.C. § 1324b.

⁵ 8 U.S.C. § 1324b(a)(6).

⁶ 8 U.S.C. § 1324b(b)-(j).

Wisconsin Lawyer