Avoiding Unfair Documentary Practices in the I-9 Process

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The Justice Department announced on November 10, 2020 that it signed a settlement agreement with Fleetlogix Inc. (“Fleetlogix”) resolving claims that the company discriminated against work-authorized, non-U.S. citizens by requiring them to provide specific and unnecessary work authorization documentation because of their citizenship or immigration status. Fleetlogix, based in San Diego, California, operates offices nationwide that provide cleaning and transportation services to rental car companies.

The Justice Department’s underlying investigation in 2019 that led to the settlement showed that Fleetlogix required specific documents from work authorized, non-U.S. citizens in violation of the Immigration and Nationality Act (“INA”), such as I-94 Arrival-Departure Record, Employment Authorization Documents (sometimes known as “work permits”) or Permanent Resident Cards (sometimes known as “green cards”), even though these individuals already presented other valid and legally sufficient documents to prove work authorization, such as a driver’s license and unrestricted Social Security card.

As part of the settlement, Fleetlogix will pay civil penalties to the United States totaling $627,000, create a back pay fund for individuals who lost work due to the discrimination, train relevant employees on the requirements of the INA’s anti-discrimination provision, and change its policies and procedures.

The INA requires employers to verify workers’ authorization to work in the United States on Form I-9. The Department of Homeland Security has designated several combinations of acceptable documents from which workers can choose to prove their identity and employment eligibility. The Form I-9 contains Lists of Acceptable Documents that fall into three categories. A worker is allowed to produce either List A documentation (establishing both identity and employment eligibility), or a combination of documentation from List B (establishing identity) and List C (establishing employment eligibility).

The INA’s anti-discrimination provision prohibits employers from committing unfair documentary practices in the Form I-9 and E-Verify processes. Such practices occur when employers demand more or different documents than necessary, request specific documents, or reject reasonably genuine-looking documents because of a worker’s citizenship, immigration status, or national origin.

Takeaways

As this enforcement effort makes clear, erring on the safe side and asking for more documents than necessary in the I-9 process could potentially result in unfair documentary practices. It is crucial that employers review their employment verification policies and protocols, proactively identify and address I-9 deficiencies, and ensure they are not over-documenting their I-9 forms. The adoption and implementation of an effective I-9 compliance policy and protocols, including regular auditing of completed I-9 forms and comprehensive training of those responsible for the completion of such forms, can help to avoid the harsh consequences of non-compliance.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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