Richard A. Gump Jr. P.C. Blog

Liability: a single word that carries significant weight, and in the construction industry avoiding liability can mean the difference between a good profit and a bad loss. While no business can fully escape it, many have tried to eliminate theircompany’s vulnerability with best practices (e.g. auditing; training; written policies and procedures) in such areas as safety, employment and verification, and construction standards. But when it comes to the hiring of new employees a rigorous methodology can often times have the reverse effect, thereby placing employers at an increased risk of exposure.

Form I-9 discrimination is one such threat that employers must address to avoid significant fines, government oversight, and overall reputation damage. During the Form I-9 verification process the Immigration and Nationality Act (INA) specifically prohibits employer discrimination against individuals on the basis of their citizenship or immigration status, or based on an individual’s national origin. While a seemingly straight forward employer regulation, the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), which investigates charges of employment discrimination based upon an individual’s citizenship or immigration status, maintains an intricate interpretation that can leave employers questioning every hiring strategy established. And with OSC investigations on the rise due to increased referrals from other enforcement agencies, employers must be acutely aware of their verification protocols.

When completing the Form I-9 the most common employer risk prevention tactic is to specifically request the employee to present a particular supporting document (e.g. U.S. passport or permanent resident card).       Although often done in good faith to ensure valid employment authorization or responding to the employee’s request as to which document to present, OSC perceives this approach as discriminatory in nature because only the employee can legally choose which document to present. In contrast, when an employer requests too many supporting documents (e.g. List A, List B and List C), this constitutes document abuse and can also be construed as discrimination. The employer must strictly follow the I-9 requirements: either a List A or List B and List C document(s).

Additional OSC discriminatory interpretations that take employers by surprise include the following:

• Form I-9 reverifications are not meant for everyone. Even though permanent resident cards and U.S. passports maintain expiration dates, neither permanent residents nor U.S. citizens need to be reverified for I-9 purposes. To do otherwise exposes an employer to discrimination liability.
• Job acceptance prior to document production. Getting a jump start on the hiring of authorized workers by requesting employment authorization documents before the individual has accepted the job can mean jumping head first into discrimination litigation. There must be a job offer and an acceptance prior to documents being produced.
• Future expiration of documents does not preclude a potential hire. Form I-9 identifies three types of employees who qualify as work authorized: U.S. citizens, permanent residents, and work authorized aliens. As long as the employee presents an unexpired employment authorization document, this individual is employment eligible and should not be excluded from hiring endeavors.

The potential for Form I-9 discrimination is enormous if an employer does not properly train its personnel regarding appropriate hiring protocols. Something as simple as an I-9 training session could be the deciding factor between liability prevention and discrimination litigation. And while employer liability will never cease to exist, knowing how to effectively minimize and manage the risk can help the employer avoid substantial civil penalties and possible criminal fines, thereby leading to the establishment of successful verification policies aimed at continued compliance.