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Employment Verification Process Has Pitfalls Even in the Absence of Unauthorized Workers

On January 7, 2013, the United States Department of Justice (DOJ) announced that Centerplate, Inc. had agreed to pay a $250,000 civil penalty to resolve allegations that it violated the anti-discrimination provision of the Immigration and Nationality Act (INA).  Specifically, the DOJ alleged that Centerplate engaged in a pattern or practice of treating work-eligible non-citizens differently from United States citizens in the employment eligibility verification process by requesting that non-U.S. citizens show specific documents to demonstrate work eligibility.  In addition to the civil penalty, the DOJ reports that Centerplate also agreed to fully compensate any victims for lost wages.  Centerplate is an international hospitality company.

This is reported to be the third largest settlement to resolve alleged violations of the INA’s anti-discrimination provisions, which have been in effect since 1986.  A copy of the DOJ’s press release can be accessed here.

Employers should always permit employees completing the Form I-9 (whether initially or as part of an update or rehire) to select and show any acceptable document, or combination of documents, to demonstrate their identity and work eligibility.  The list of acceptable documents, which may change with each revision of the Form I-9, is listed on the reverse side of each edition.  Because the list of acceptable documents can change, it is important to ensure that the form being used is always the most current edition.  If in doubt whether the edition being used is current, the employer may always review or download the current edition from the U.S. Citizenship and Immigration Services’ (USCIS) website at www.uscis.gov (type Form I-9 in the search box).

The revision date of the current edition is August 7, 2009 — this information is located in the lower right-hand corner of the form– and, we note, that, notwithstanding the new year, the current edition lists an OMB expiration date of August 31, 2012 — this information is listed in the upper-right hand corner of the form.  USCIS reports that it will provide updated information about the new version of the form, which is still being developed, once it becomes available.

The employment verification process can be fraught with pitfalls for employers — or employees — who attempt to deviate from the verification procedures required by the Form I-9 process.  It bears remembering that the fact of work authorization is not enough.

Copyright © 2020 Godfrey & Kahn S.C.National Law Review, Volume III, Number 93

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About this Author

The firm's Labor, Employment & Immigration Law Practice Group has a long history of successfully representing businesses in labor and employment disputes. In addition to its strong background in providing labor and employment counseling, the practice group has the depth and breadth of resources to appropriately staff labor and employment litigation matters ranging from straightforward unemployment compensation hearings and grievance-arbitration matters to the defense of complex discrimination claims and multiparty employment litigation.

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