On Tuesday, July 30, 2019, the U.S. Department of Justice (DOJ) announced a settlement agreement with United General Bakery, Inc. based in Phoenix, Arizona. The agreement resolved a DOJ investigation into whether the company discriminated against authorized workers based on their citizenship status when verifying their work authorization in violation of the Immigration and Nationality Act (INA).

All employers must verify the employment eligibility of their employees through the I-9 process. U.S. Immigration and Customs Enforcement (ICE) has primary jurisdiction over the I-9 process; however, DOJ’s Civil Rights Division, Immigrant and Employee Rights Section (IER), plays a significant role when it comes to investigating and prosecuting cases of I-9 related discrimination.

What is I-9 Discrimination?

The INA prohibits discrimination in several ways related to the I-9 process. Employers may not have I-9 policies that results in unequal treatment of employees based on their citizenship, immigration status, or national origin. The INA also states that employers cannot make unnecessary requests for documentation when verifying employment authorization, have unfair documentary practices, or engage in behavior that is meant to intimidate or retaliate.

Case Study: United General Bakery, Inc.

The investigation into United General Bakery serves as a case study of discriminatory behavior in multiple aspects of the I-9 process. For example, the company required non-US citizens to present specific forms of documentation as proof of employment authorization, rejecting other valid, legally acceptable documents. In addition, they imposed this requirement in a discriminatory fashion, requiring the additional documentation from non-US citizen employees only while setting a different standard for US citizen workers. The DOJ also found that the bakery had a practice of requesting lawful permanent residents provide “additional and unnecessary” documents when their permanent resident cards expired. The bakery was also fined for retaliation and intimidation of workers.

Potential penalties for such violations can include civil penalties of up to $2,000 for each individual discriminated against. In this case, under the terms of the settlement, DOJ imposed $45,000 in civil penalties. In addition, United General Bakery, Inc. is required to train their human resources department on the INA requirements regarding anti-discrimination and will be subject to compliance monitoring by the DOJ during a two-year period.

How Can US Employers Avoid Discrimination in the I-9 Process?

When you present your employee with a Form I-9, you must also present the List of Acceptable Documents. You may not specify which of the documents from the list are preferred, nor should you accept only a limited subset of documents from the list. Likewise, when re-verifying employment, you may not specify what documents the employee should provide.

Employers need to keep in mind that advertising job posts with language such as “Only Open to US Citizens” or “Must Present US Birth Certificate” risks violation of the INA. If it is the rare job which has citizenship status restrictions, ensure the job advertisement does not violate the INA.

In this climate, all agencies are examining business with heightened scrutiny concerning hiring practices and no business is immune. ICE and the DOJ continue to expand their efforts beyond industries that traditionally rely on low-skilled foreign workers to include those that have not previously been the target of investigations or only have a handful of foreign workers.