No employer wants to be the target of federal regulators on the hunt for workers not authorized to hold jobs in the United States. And no employer wants to be vulnerable to a national origin discrimination lawsuit. But both potential problems can be the result if an employer handles the employment verification process poorly. 
Recent raids by Immigration and Customs Enforcement (ICE) agents have been reported in major cities recently as part of President Donald Trump’s crackdown against undocumented individuals. Plus, more pressure may be on the way since ICE is expected to significantly step up its auditing of I-9s, the forms employers are required to have on all workers in order to prove employment eligibility.
And it’s not just concern about ICE. The U.S. Department of Labor’s Wage and Hour Division as well as the Office of Federal Contract Compliance Programs also may review I-9s as part of investigations they undertake.
So with the heat on, employers need to make certain they use sound policies related to the collection and storage of I-9 forms and supporting documentation. Part of that process needs to focus on preventing national origin discrimination.
Know the risks
Jacob M. Monty, managing partner with the Monty & Ramirez LLP law firm in Houston, Texas, urges employers to always take care to uniformly apply employment policies. “In the context of I-9s, employers need to avoid making any assumption about an individual’s immigration status,” he says. “Making such assumption exposes employers to a discrimination suit.”
Monty says employers must never ask to see employment authorization documents before an individual accepts a job offer. Further, employers must take care when they reverify any employee’s status.
“Panda Express recently learned the hard way to be cautious when reverifying,” Monty says. The U.S. Justice Department announced on June 28 that the restaurant chain’s parent company is to pay approximately $600,000 in fines and back pay after an investigation showed that the company excessively checked documents for already reverified employees and required permanent residents to present documents when their green cards expired even though they didn’t require further documentation from U.S. citizens whose documents expired.
Avoiding mistakes
Monty says a common mistake employers make is requiring different levels of documentation from individuals the employer suspects to be immigrants. “Requiring an employee to present specific documentation based on such suspicion could constitute discrimination based on citizenship and/or national origin,” he says. “Another mistake would be to not accept certain documents even though they appear on the form’s Lists of Acceptable Documents. Further, employers may not refuse to accept a valid document simply because it will expire sometime in the future.”
But what should an employer do if it suspects a worker’s I-9 documentation isn’t legitimate? “Employers are not expected to be document experts,” Monty says, and they must accept any document an employee presents from the Lists of Acceptable Documents “as long as the document reasonably appears to be genuine and to relate to the employee.”
If documentation doesn’t appear legitimate and related to the employee, Monty says the best practice for an employer is to take a copy of the document for the employer’s records, inform the individual that the document can’t be accepted, and allow the individual to provide different documentation. Unless the employee presents different documentation in support of his or her employment eligibility within three days of the first day of employment, “time is up,” Monty says.
When problems surface later
Sometimes employers determine that an already-employed worker doesn’t have the documentation to prove he or she is authorized to work in the United States. Monty reminds employers in such a situation that they can’t knowingly hire or continue to employ individuals without employment authorization.
“A good faith defense is the proper completion of the I-9 verification at the outset, but if an employer later obtains actual or constructive knowledge that an employee is not authorized to work, that employee should be terminated,” Monty says.
Need to learn more? Join us at the 22nd Advanced Employment Issues Symposium where Jacob Monty will present Form I-9 and National Origin/Citizenship-Based Discrimination: How to Minimize Legal Risks in Recruiting Employment Verification and Re-verficiation, and Avoid ICE Penalties. This session will focus on avoiding violations under Title VII and recommend strategies for self-auditing your practices for managing Form I-9s to avoid hefty ICE penalties and potential legal claims. Monty will review the new Smart Form I-9 as well as how to correct I-9 errors, get the documentation you need from employees, and handle a situation where you determine that a worker doesn’t have the documentation to prove he or she is authorized to work in the United States. To learn more, click here.