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On Tuesday, June 19th, the US Department of Justice announced the filing of a lawsuit by the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) against Rose Acre Farms Inc., a major U.S. egg producer, for discrimination in the I-9 process. As with other recent OSC defendants and respondents, Rose Acre is accused of requesting excessive I-9 documentation (also known as “document abuse”) from newly hired non-U.S. citizens (such as permanent residents, nonimmigrant visa holders, & those who have work authorization incident to status) in order to verify employment eligibility.
Unlike recent cases, however, the OSC specifically charged that Rose Acre purchased an electronic I-9 software system in June 2009 that may have prompted human resource officials to demand certain documents from non-U.S. citizens. Is it possible for an employer, through its electronic I-9 system, to commit document abuse? And if so, can OSC prevail in its demand for monetary damages and civil penalties? Let’s take a closer look!
What exactly is Document Abuse?
The anti-discrimination provision of the Immigration and Nationality Act prohibits unfair I-9 documentary practice which occurs when employers treat individuals differently on the basis of national origin or citizenship status. The following prohibited practices constitute what is casually referred to as “document abuse”:
| Document Abuse | Example of Prohibited Conduct |
|---|---|
| 1. Improperly requesting that employees produce more documents than are required by Form I-9 to establish the employee’s identity and employment authorization | Employer requests aliens authorized to work to produce one document from Lists A and B. |
| 2. Improperly requesting that employees present a particular document to establish identity and/or employment authorization | Employer requests legal permanent residents to always produce a green card, even if they have a driver’s license and unrestricted social security card. |
| 3. Improperly rejecting documents that reasonably appear to be genuine and belong to the employee presenting them | Employer rejects EAD card, even though it appears to be valid. |
| 4. Improperly treating groups of applicants differently when completing Form I-9, such as requiring certain groups of employees who look or sound “foreign” to produce particular documents the employer does not require other employees to produce. | Employer requires all employees with a Spanish accent to present a green card. |
How can an electronic I-9 software system cause Document Abuse?
As I-9 enforcement has increased over the years, many employers are now using electronic I-9 systems from a variety of different sources – specialized I-9 providers, all-in-one systems (offering tax, payroll, benefits and other services), and even home-grown applications. While specialized providers typically invest significant amounts of time, energy, and resources into their I-9 systems, the all-in-one and homegrown systems can be hit or miss. In the rush to offer an electronic I-9 solution, many of these companies have created systems which disregard basic I-9 rules or over-automate the process. It’s not uncommon today to see an I-9 system which auto-populates section 1 information or closes E-Verify cases without proper review. And of course, we cannot forget the $1 million fine levied on Abercrombie & Fitch for deficiencies in their system’s audit trails.
But perhaps one of the most difficult (and potentially risky) areas in I-9 compliance is electronically completing the form for foreign national employees. Not only do these individuals often have special rules associated with their status, they are frequently (as in today’s case) the alleged victims of discriminatory activity. In fact, most if not all of the recent settlement cases involve document abuse against legal permanent residents or work authorized individuals. So if your electronic I-9 system is not handling them properly (e.g., by improperly requesting additional documentation), you potentially face not only scrutiny from ICE, but from OSC as well!
Will OSC prevail based on document abuse from an electronic I-9 system?
Like so many things in I-9 compliance, the devil is really in the details. But first, let’s take a quick look back at the history of document abuse. In 1990, Congress added the so-called document abuse provision to the Immigration and Nationality Act to address ongoing discriminatory actions against non-citizens or those perceived to be ‘‘foreigners.” Under this new provision, it was unlawful for an employer to request more or different documents than are required under the I-9 process or to refuse to honor documents that on their face reasonably appear to be genuine. Because no element of “intent” to discriminate was explicitly spelled out, document abuse was treated as a “strict liability” offense – meaning once proven, there was no need to inquire into the reason for the employer’s conduct.
Fast-forward to 1996, and the law was amended once again to indicate that document abuse only occurs if made for the purpose or with the intent of discriminating against an individual. That’s where we are today, and that’s why it’s ultimately hard to predict whether OSC can prevail without knowing all of the details. If the electronic I-9 system’s overzealous request for documents is viewed as simply a glitch (i.e., no discriminatory intent by the employer), I would think that Rose Acre has a fairly good case. On the other hand, if the evidence shows that the system acted as a facilitator of discriminatory attitude or even lead to a facially discriminatory statement or policy, I think another settlement in OSC’s favor is in our future.
Lesson Learned
Regardless of the outcome, this lawsuit should serve as a clear warning sign for any employer who is currently using or contemplating electronic I-9 software. While these systems have many benefits which outweigh the tediousness of paper, employers need to exercise a certain degree of caution and due diligence to ensure they don’t inadvertently make things worse. Here are 3 essential steps to get you started:
- Engage experienced immigration counsel to evaluate your current I-9 processes and procedures and address all of those tricky areas in the law.
- Develop policies, documentation, and training – the 3 best ways to ensure that your organization is on the same page when it comes to I-9 and E-Verify processing. Attend one of the free OSC webinars to learn more about immigration-related unfair employment practices.
- Review at least 2 outside electronic I-9 and E-Verify systems with counsel to ensure you are using a compliant system. A well designed system will alleviate I-9 concerns by preventing mistakes while at the same time enforcing proper procedures for requesting I-9 documentation.
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