An Employer Can be Sued by the Dept. of Justice for Its Electronic I-9 Provider’s Flaws

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[authors: Jennifer G. Parser, David L. Woodard]

The US Department of Justice (DOJ) announced its latest suit against a large multistate Indiana-based egg producer for unfair employment practices in violation of the Immigration and Nationality Act’s anti-discrimination provisions. This employer contracted with a vendor to use its electronic I-9 program.  As part of its employment verification process, this I-9 program prompted non-US citizen employees to produce additional or specific documents in violation of the Form I-9 instructions.  To remind, it must be the employee who selects which documentation listed on the reverse side of the Form I-9 to present to the employer to prove identity and employment authorization. The illegal request by the I-9 program caused the contracting employer to engage unwittingly in unfair immigration-related employment practices.

When selecting an outside electronic I-9 program vendor, please ensure it complies with relevant immigration and antidiscrimination law by seeking experienced immigration and employment legal counsel. Also, be sure that the contract with such an I-9 program vendor provides indemnification and covers attorneys’ fees and expenses as the result of a DOJ inquiry, and any subsequent employee or DOJ discrimination lawsuits.