The I-9 process of verifying an employee’s identity and employment authorization can be, as W.C. Fields put it, “fraught with eminent peril.” Failure to comply with documentation, verification, and discrimination laws can result in stiff fines and penalties. And recent settlement agreements between employers and the U.S. Department of Justice (DOJ) indicate that the government is paying attention. 
Background
Form I-9 is a requirement of the Immigration Reform and Control Act (IRCA). Passed in 1986, the IRCA was aimed at decreasing the incentive for undocumented workers to enter the country. Under the law, all employers must verify the identity and employment authorization of each person hired after November 6, 1986, by properly completing a Form I-9 for every employee. Failure to do so can result in civil fines, criminal penalties, debarment from government contracts, or court orders requiring back pay―or even an order that the employer hire the person it discriminated against.
In addition to those penalties, the I-9 process is bolstered by the antidiscrimination provisions of the Immigration and Nationality Act (INA). Those provisions make it illegal for employers to discriminate based on citizenship status or national origin when authorizing or reauthorizing someone for employment. Violations of the INA are investigated by the DOJ’s Office of Special Counsel for Immigration- Related Unfair Employment Practices (OSC).
DOJ investigations
The OSC has recently completed several investigations of alleged unfair and discriminatory practices that occurred during the I-9 process.
Forever 21. The OSC took umbrage with what it considered discriminatory Form I-9 practices in violation of the INA by Los Angeles- based clothing retailer Forever 21. According to the agency, Forever 21 rejected a work-authorized individual’s employment authorization document (EAD) issued by the U.S. Department of Homeland Security (DHS). Instead, Forever 21 insisted the applicant produce a green card as a condition of employment. The retailer violated the antidiscrimination provisions of the INA by demanding specific documents and rejecting otherwise acceptable documents based on the applicant’s citizenship or national origin.
Forever 21 agreed to resolve the allegations by compensating the applicant with $1,705.50 in back pay and paying $280 in civil penalties. The DOJ will also provide the retailer with training on the INA’s antidiscrimination provisions and monitor its employment eligibility verification practices for one year.
SOS Employment Group. The OSC recently brought similar allegations against a Salt Lake City-based staffing company, SOS Employment Group. The DOJ alleged that SOS rejected an employee’s valid driver’s license and unrestricted Social Security card and instead required the employee―who is a refugee―to produce a DHS-issued EAD. The employer’s actions were based solely on the individual’s status as a non-U.S. citizen, according to the DOJ. Like Forever 21, SOS reached a settlement agreement requiring it to undergo training and monitoring as well as pay $9,157.50 in back pay and $1,200 in civil penalties.
Macy’s. Last year, the OSC determined that Macy’s engaged in unfair documentary practices against work-authorized immigrant employees during the employment reverification process. The investigation was the result of complaints made to the OSC’s worker hotline. The retailer agreed to pay a civil penalty of $175,000 and set aside a fund of $100,000 to compensate individuals who suffered economic damages as a result of its reverification practices.
What’s prohibited in the Form I-9 process?
As you can see from the charges leveled against Forever 21, SOS, and Macy’s, employers don’t have much discretion during the I-9 process. With that in mind, here are some practices to consider when you’re hiring a new employee:
- Don’t demand that an employee or a job applicant provide specific documents during the I-9 process.
- The most recent iteration of the “List of Acceptable Documents” in Form I-9 contains more than 20 documents (e.g., a passport, driver’s license, Social Security card, EAD). Accept anything on the list that reasonably appears to be genuine and relate to the employee.
- Treat all people equally when you’re evaluating and verifying Form I-9 documents.
- Don’t ask to see EADs before a prospective employee accepts a job offer.
- If someone files a complaint with the OSC or the Equal Employment Opportunity Commission (EEOC), don’t retaliate against or threaten her.
Bottom line
The I-9 process is no walk in the park. What may seem like an innocuous request for additional documentation during the verification or reverification process could in fact be a violation of the INA’s antidiscrimination provisions. If you run afoul of those provisions, you can be subject to civil fines and criminal penalties ranging from $375 to $16,000 for each worker for multiple offenses, in addition to the penalties mentioned above.
Knowing what’s permissible during the hiring process is critical to staying within the bounds of the law and ensuring your hiring practices don’t expose you to fines and penalties.
Anders Lindberg is an attorney with Steptoe & Johnson, practicing in the firm’s Huntington, West Virginia, office. He may be contacted at anders.lindberg@steptoe-johnson.com.