Enacted as an amendment to the Immigration and Nationality Act (INA), the Immigration Reform and Control Act of 1986 (IRCA) is best known for requiring employers to verify the citizenship of its employees with I-9 forms and for making it a felony to knowingly hire unauthorized immigrants.  

Less known is that IRCA prohibits employers from discriminating or retaliating against an individual because of the individual’s citizenship—and also imposes substantial penalties against those that do.

In the last month, the Department of Justice (DOJ) reminded employers that it is actively enforcing IRCA’s anti-discrimination provisions by publishing the details of two settlements it entered into with employers that allegedly engaged in citizenship discrimination.

In the first complaint, an applicant alleged that the employer refused to honor a work authorization document and asked the employee to produce a green card, even though the employer had never refused to honor work authorization documents provided by U.S. citizens. The employer eventually settled the lawsuit, agreeing to:  

·       reinstate the employee  

·       pay $6,384 in back pay plus interest and $10,825 in civil penalties

·       provide training to its HR personnel about avoiding discrimination

·       receive 18 months of reporting and compliance monitoring by the DOJ  

In the second complaint, the employer required a non-U.S. citizen to present a permanent resident card, despite the individual having already produced documents establishing his qualifications to work in the U.S. As with the other complaint, the employer never requested additional eligibility documents from any of its U.S. citizen employees. Therefore, the DOJ required the employer to settle the discrimination complaint by agreeing to: 

·       pay $7,000 in back pay

·       provide training to its HR personnel about avoiding discrimination in the employment eligibility verification process

·       receive three years of reporting and compliance monitoring by the DOJ 

​Federal enforcement of immigration law requirements through raids and audits is on the rise and the authorities are making documentation rules stricter. Meanwhile, courts are tending to enhance the zone of federal and state liability for national origin and citizenship discrimination. Since these factors increase a company’s exposure to diverse claims, it is worthwhile to conduct a careful review of your company’s current hiring practices and to engage in compliance-oriented planning. 

A bit of foresight can stave off substantial unforeseen civil damages, administrative consequences, and even criminal investigations. For employers who hire people from around the world, an ounce of prevention really is worth a pound of cure.

Contact

Joseph W. Uhl
Uhl@millercanfield.com