What are the Immigration and Reform and Control Act anti-discrimination and document abuse rules?  

While employers need to be diligent about complying with IRCA’s employment verification rules, they should not be so overzealous that they end up penalizing qualified employees. IRCA also has anti-discrimination rules that can result in an employer facing stiff sanctions. Employers of more than three employees are covered by the IRCA anti-discrimination rules (as opposed to the 15 or more employees required by Title VII of the Civil Rights Act). IRCA protects most U.S. citizens, permanent residents, temporary residents or asylees, and refugees from discrimination on the basis of national origin or citizenship status if the person is authorized to work. Aliens illegally in the U.S. are not protected.  

Under IRCA, employers may not refuse to hire someone because of their national origin or citizenship status and they may not discharge employees on those grounds either. The employer is also barred from requesting specific documents in completing an I-9 Form and cannot refuse to accept documents that appear genuine on their face. But note that an employer must be shown to have had the intent to discriminate.  

Employers can separately be sanctioned based on legislation passed in 1990 if they request more or different documents than required by the I-9 rules. Employers originally were held strictly liable for violations under this category, but in 1996 legislation was passed requiring a showing that employers intended to discriminate.  

How is enforcement responsibility split between the Department of Justice’s Office of Special Counsel and the Equal Employment Opportunity Commission? 

The OSC and the EEOC split jurisdiction over national origin discrimination charges.  

EEOC handles matters involving employers with 15 or more employees while OSC has responsibility for smaller employers with between 4 and 14 employees. OSC covers national origin claims involving intentional acts of discrimination with respect to hiring, firing and recruitment. EEOC has broader jurisdiction under Title VII of the Civil Rights Act.  

OSC has exclusive jurisdiction to rule on citizenship and immigration status discrimination claims against employers with four or more employees. OSC also has jurisdiction over document abuse claims for employers with four or more employees.  

How is a complaint made for an Immigration and Reform and Control Act anti-discrimination violation? 

OSC accepts charges filed by individuals or their representatives who believe they have been the victims of employment discrimination. DHS officers may also file charges. 

Discrimination charges must be filed with six months of the alleged discriminatory acts. After the claim is filed, OSC has ten days to notify the employer and then with either file a complaint with an ALJ within 120 days or notify the charging party that it will not file a complaint. The charging party may independently file a complaint with an ALJ within 90 days of getting this notice from OSC. OSC may also reverse its decision and file a complaint within this 90 day period. The judge then will have a hearing and issue a decision or the parties may independently reach a settlement agreement.  

What is “document abuse”? 

“Document abuse” refers to discriminatory practices related to the verification of employment eligibility in the Form I-9 process. Employers who treat individuals differently based on national origin or citizenship commit document abuse when they engage in one of four types of activity: 

·         improperly requesting employees produce more documentation than is required to show identity and employment authorization

·         improperly asking employees to produce a particular document to show identity or employment eligibility

·         improperly rejecting documents that appear to be genuine and belonging to the employee

·         improperly treating groups of applicants differently (e.g. based on looking or sounding foreign) when the complete the Form I-9 

All individuals authorized to be employed can file a claim under the document abuse rules if an employer has four or more employees.  

What is “citizenship status discrimination”? 

Citizenship or immigration status discrimination refers to when a person or entity discriminates against any individual (other than an unauthorized immigrant) with respect to the hiring, or recruitment, or referral for a fee, of the individual for employment of the firing of the individual from employment because of the individual’s citizenship or immigration status.  

What is “national origin discrimination”? 

National origin discrimination refers to when a person or entity discriminates against any individual (other than an unauthorized immigrant) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment of the firing of the individual from employment because of the individual’s national origin. 

What are examples of prohibited practices? 

DHS lists various examples of prohibited practices in the M-274 Handbook for Employers: 

a.    Setting different employment eligibility verification standards or require different documents based on national origin or citizenship status. One example would be requiring non-U.S. citizens to present DHS-issued documents like “green cards”

b.    Requesting to see employment eligibility verification documents before hire and completion of the Form I-9 because an employee appears foreign or the employee indicates that he or she is not a U.S. citizen.

c.    Refusing to accept a document or hire an individual because an acceptable document has a future expiration date.

d.    Requiring an employee during re-verification to present a new unexpired EAD if the employee presented an employment document during the initial verification. Note: This appears to contradict earlier statements from legacy INS and in at least one court case stating that an employer may have a responsibility to ask an employee whether employment authorization has been extended. An employer should consult with counsel in such situation.

e.    Limiting jobs to U.S. citizens unless a job is limited to citizens by law.

f.     Asking to see a document with an employee’s alien or admission number when completing section 1 of Form I-9.

g.    Asking a lawful permanent resident to re-verify employment eligibility because the person’s “green card” has expired. 

Are employees protected from retaliation if they complain about discrimination? 

Yes. Employers cannot retaliate against an employee who files a charge with OSC or the EEOC. The employee is also protected if he or she is witness or participant in an investigation or prosecution of a discrimination complaint or if the employee asserts rights under IRCA’s anti-discrimination provisions or Title VII of the Civil Rights Act of 1964. 

How does the Civil Rights Act of 1964 provide employees additional protections? 

Title VII of the Civil Rights Act of 1964 bars employment discrimination based on national origin, race, color, religion, and sex. Only employers with fifteen or more employees for 20 or more weeks in the preceding or current calendar year are covered. Title VII covers discrimination in any aspect of employment.  

What is the basis for regulating immigration-related unfair employment practices? 

Section 274B of the INA specifically prohibits discrimination based on national origin or citizenship status.  

Can employers discriminate against employees requiring visa sponsorship? 

Non-immigrant aliens, whether work authorized or not, aliens not in legal status in the U.S. and others requiring visa sponsorship are not protected by the anti-discrimination provisions in IRCA. However, Title VII of the Civil Rights Act of 1964 offers some protections to these individuals in so far as employers who appear to be inconsistent in who they consider for sponsorship and who they don’t may be found to have engaged in national origin discrimination under that law.  

Can employers discriminate against employees with an expiring Employment Authorization Document? 

No. Generally the existence of a future expiration date should not be considered in determining whether a person is qualified for a position and considering a future employment authorization expiration date may be considered employment discrimination. In other words, you may not refuse to hire a person because they only have temporary employment authorization. This does not, of course, preclude re-verification upon the expiration of employment authorization.  

What information can be requested of an individual prior to the commencement of employment? 

Employers who require applicants to complete Form I-9 prior to the beginning of employment need to be very careful because of the possibility of national origin discrimination. At a minimum, the employer should wait until an offer is extended and accepted before requesting completion of the I-9. After that, the employer can start the Form I-9 process. It is a smart practice to have a uniform policy regarding completion of the Form I-9 or if an exception is being made, there is a rational reason.  

Who is a “protected individual” under Immigration and Reform and Control Act and can an employer discriminate against those not included? 

“Protected individuals” under IRCA’s anti-discrimination rules include anyone who is a U.S. citizen as well as individuals who fit in to the following categories: 

·         lawful permanent residents (green card holders)

·         refugees

·         certain beneficiaries of the 1986 legalization program (there are very, very few of these people left who have not become green card holders at this point)

·         asylees 

Employers are not required to consider applicants who are outside of this list under IRCA’s anti-discrimination rules. Employers should be careful, however, to be consistent in applying the policy so as to avoid a finding that a particular group has been disparately treated. Such inconsistency could lead to a finding of national origin discrimination under the Civil Rights Act of 1964. 

Can an employer maintain a policy of only employing U.S. citizens? 

No. Employers must consider all protected individuals under IRCA. Discriminating against protected individuals under IRCA would be considered discrimination.  

Can an employer require employees to post indemnity bonds against potential liability under the Immigration and Reform and Control Act? 

No. Such a practice is specifically prohibited under DHS regulations. And that would include any other type of indemnification required by an employer against potential liability arising under IRCA. However, the regulations do say that an employer may still require an employee to agree to a “performance clause” where an employee unable to perform the job duties may be held accountable to the employer. Whether such a clause is enforceable or not is a question of contract and labor law, of course, and counsel should be consulted. 

Can an employer not sure whether documents are valid for a new hire request Department of Homeland Security verification of the status of the employee? 

Only employers participating in E-Verify can validate the status of an employee through DHS.  Employers are permitted, however, to contact DHS if the employer has a reason to believe that the employee’s documentation is suspicious. If DHS believed the matter to be worth pursuing, ICE could follow up to investigate the matter. Employers who contact DHS about documents they believe to be invalid would not be liable for discrimination if they genuinely believed the documents to be potentially invalid and the employer was not singling out an employee on the basis of appearing or sounding foreign.  

Note that an employer can contact SSA to verify the validity of an SSN. Information on this online service can be found at www.ssa.gov/bso/services.htm. 

Who may file a complaint under the Immigration and Reform and Control Act against an employer for violations of the employer sanctions rules?  

Any person having knowledge of a violation or potential violation of IRCA may submit a signed, written complaint in person or by mail to the local DHS office having jurisdiction over the employer. 

What is the procedure to file a complaint under the Immigration and Reform and Control Act against an employer for violation of the anti-discrimination rules? What about a complaint under Title VII? 

The complaint must detail the allegations, identify the parties and list the relevant dates of the alleged violations. The complaint must be filed within 180 days of the alleged discriminatory act.  

Individuals who believe they have been the victim of discrimination prohibited by IRCA can also call the Department of Justice’s OSC employee hotline at 800-255-7688 or visit their web site at www.usdoj.gov/crt/osc/ for more information and to download a charge form. OSC also has a telephone intervention program where employers and employees can speak with an OSC representative and attempt to resolve a matter without resorting to the formal complaint process. The employer telephone number for this service is 800-255-8155 and the employee number is 800-255-7688.  

Individuals seeking to file a complaint under Title VII of the Civil Rights Act of 1964 can call the EEOC at 800-USA-EEOC or go to www.eeoc.gov.  

How does the Office of Special Counsel for Immigration Related Unfair Employment Practices investigate complaints? 

First, OSC must determine if the claim may have merit. If OSC decides to investigate a complaint, it will notify the employer in writing about the opening of an investigation and it will request in writing information and documentation relating to the complaint. The documents may be subpoenaed if an employer refuses to cooperate.  

OSC has 120 days to determine if the charge is true and whether to bring a complaint. If it makes this determination, it will issue a Notice of Intent to Fine or, instead, a Warning Notice. It can also send a letter to the complaining party during that 120 day period indicating it will not file a complaint.  

The charging party may file a complaint directly with the Chief Administrative Hearing Officer within 90 days of getting the notification from OSC that it is not pursuing the case.  

Employers who wish to contest the fine must file a written request for a hearing before a hearing officer or judge.  

How many complaints does Office of Special Counsel for Immigration Related Unfair Employment Practices receive each year? 

In 2007, OSC received 277 charges that it reviewed. OSC also handled 21,000 hotline calls. One half of all charges were voluntarily resolved.

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Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.