On December 19, 2016, the Department of Justice (DOJ) issued a final rule that revises the DOJ’s regulations implementing certain provisions of the Immigration and Nationality Act (INA) related to to unfair immigration related employment practices. The rule introduces no major changes for employers, but it should be a reminder to review Form I-9 employment authorization policies. The final rule is intended to conform DOJ regulations with existing statutory provisions and to update regulations to ensure effective investigations of unfair immigration-related employment practices.
The final rule defines “discrimination” in the context of immigration related unfair employment practices, and, in particular, in the process of completing and retaining the Form I-9. The statute requires “intentional” discrimination, which in the past the regulations did not mention. Now the regulations define “discriminate” to include intent but in a very limited way: ” the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.” In practice, this could result in discrimination charges based on the impact of practices not overtly intended to disadvantage those in the protected class.
The key to navigating the rule is to know what you can ask. For instance, an employer who asks a lawful permanent resident for documentation after the worker fails to provide a USCIS A-Number in Section 1, could be found to discriminate if the employer did not ask other workers for documentation to verify missing information in Section 1. Similarly, an employer stating “I see you are a lawful permanent resident, do you have your green card for Section 2?” may also be acting in violation of the law as employers may not request specific documents for employment eligibility verification purposes based on a worker’s citizenship status or national origin. (This scenario has been a subject of frequent DOJ enforcement, and apparently it can be expected to continue.) The rule clarifies that the worker does not need to experience economic harm, for example due to delay in beginning work, for an employer to be liable for discrimination.
The final rule states that the DOJ can investigate on its own initiative, without an employee complaint. Also, statistical evidence based on employers using the E-Verify electronic employment verification system could lead to investigations of employers, and this opportunity for DOJ data mining has been a good reason NOT to use E-Verify. When discussing the comments to the final rule, the DOJ explained that the Department of Homeland Security often refers employers to the DOJ if, for instance, a large percentage of permanent resident workers provided a green card to prove identity and work authorization, while U.S. citizen workers present driver’s licenses and Social Security cards. These statistical disparities can be important to show a prima facie case of discrimination, but the employer can try to provide a legitimate, nondiscriminatory reason for the disparity such as that employees volunteered to show the documents with no request by the employer.
The final rule does not introduce new requirements, but a rise in employment verification enforcement may be expected.
To view the new rule click here.
