1. Avoiding Discrimination in the Employment Eligibility Verification Process
March 25, PM ET
Office of Special Counsel for Immigration Related Unfair Employment Practices
Employment Eligibility Verification: I-9 and Discrimination Issues

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Employment Eligibility Verification: I-9 and Discrimination Issues

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Employment Eligibility Verification: I-9 and Discrimination Issues

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Employment Eligibility Verification: I-9 and Discrimination Issues

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Employment Eligibility Verification: I-9 and Discrimination Issues

6. Presenters Presenters:
Erik Lang, Trial Attorney, Office of Special Counsel, U.S. DOJ
Jennifer Sultan, Trial Attorney, Office of Special Counsel, U.S. DOJ
Moderator:
Elissa McGovern, Manager, Policy and Regulatory OFLC, ETA
Employment Eligibility Verification: I-9 and Discrimination Issues

7. Erik Lang,
Trial Attorney, Office of Special Counsel for Unfair Immigration-Related Employment Practices
(NOTE: Use this slide to transition between speakers and introduce new speakers/presenters during the presentation.)
Employment Eligibility Verification: I-9 and Discrimination Issues

8. Welcome Highlights OSC: Who We Are… and What We Do 8 USC 1324b
Unfair immigration-related employment practices
Employment Eligibility Verification: I-9 and Discrimination Issues

9. Special Rules for SWAs 8 U.S.C. § 1324a(a)(5)
“Use of State employment agency documentation” (Statutory Authority)
8 C.F.R. § 274a.6 (Regulatory Authority)
State employment agency can not accept receipts (§ 274a.6(a)(1) )
Employment Eligibility Verification: I-9 and Discrimination Issues

10. Historical Overview of OSC
Immigration Reform and Control Act of 1986 (IRCA)
Employer Sanctions for Knowingly Hiring Undocumented workers
Established I-9 Employment Eligibility Verification Process
Created OSC to Enforce Anti-discrimination Provision
Employment Eligibility Verification: I-9 and Discrimination Issues

11. Resulting Discrimination
Government Studies Found Widespread Pattern of Discrimination
1990 GAO Report:
Against citizens/legal workers
Against persons who appeared foreign
Against persons with foreign accents
Employment Eligibility Verification: I-9 and Discrimination Issues

12. Impact of Employer Sanctions
GAO Found:
19% of employers (891, 000), hiring 6.8 million workers/year, BEGAN discriminatory practices
Concluded: Asians/Hispanics harmed by implementation of the 86 law
Employment Eligibility Verification: I-9 and Discrimination Issues

13. Prohibited Conduct Under the INA’s Anti-Discrimination Provision
8 U.S.C. 1324b
Citizenship status discrimination
National origin discrimination
Document abuse
Retaliation
Employment Eligibility Verification: I-9 and Discrimination Issues

14. Citizenship/Immigration Status Discrimination
With Respect to Hiring, Firing, and Recruitment or Referral for a Fee:
All employers with more than 3 employees
Protected Persons: U.S. citizens, nationals, asylees, refugees, temporary residents, and LPRs
Excludes LPRs who do not apply for citizenship within 6 months of eligibility
Employment Eligibility Verification: I-9 and Discrimination Issues

15. Not Covered Non-Immigrant Visa Holders Asylum Applicants
Lawful Permanent Residents
Who Have Not Applied for Naturalization W/N Six Months of Their Eligibility
Undocumented Workers
Employment Eligibility Verification: I-9 and Discrimination Issues

16. Examples of Citizenship Status Discrimination
Citizen only hiring policies
Exceptions:
Required by law, regulation, or government contract
Can prefer equally qualified U.S. citizens
But see: Mesa Airlines: Cannot give U.S. citizens priority without considering immigrants
Employment Eligibility Verification: I-9 and Discrimination Issues

17. Examples of Citizenship Status Discrimination (Con’t)
Green Card only Hiring Policies:
Marcel Watch: Requiring Green Card
from U.S. Citizens born in Puerto Rico
Refusing to Hire Asylees/Refugees:
PEPCO: Refusing to hire Asylees because
EAD had future expiration date
Covenant Transport: Refusing to hire
Asylees for driving positions because of routes in the U.S. and Canada
Employment Eligibility Verification: I-9 and Discrimination Issues

18. Examples of Citizenship Status Discrimination (Con’t)
Preferring undocumented workers:
Iron Workers Local 455 vs. Lake Construction Corporation
Different hiring procedures for U.S. citizens and immigrants:
Agripac: Required immigrants, or those who appeared foreign, to show work documents before applications: U.S. citizens, or those who appeared to be U.S. citizens, provided employment application without question
Asylees for driving positions because routes are in the U.S. and Canada
Web-Based want ads
Employment Eligibility Verification: I-9 and Discrimination Issues

19. Examples of Citizenship Status Discrimination (Con’t)
Preferring H1-B or other temporary workers:
Bland Farms: Preferring H-2A workers
But See DANIEL OJEDA-OJEDA, ET AL, v. BOOTH FARMS, 9 OCAHO No (2006)
See also: 20 CFR Basis for discontinuation of services.
Employment Eligibility Verification: I-9 and Discrimination Issues

20. National Origin Discrimination
Discrimination linked to person’s place of birth, country of origin, ancestry, native language, accent; perceptions….
With respect to hiring, firing, recruitment or referral for a fee
All employers with more than 3 and less than 15 employees
Protected Persons: U.S. citizens and nationals, and legal workers
Employment Eligibility Verification: I-9 and Discrimination Issues

21. U.S. citizens and nationals, and all legal workers
Document Abuse
Requiring immigrants to present INS-issued documents; allowing U.S. citizens choice of documents
Requiring those who appear foreign to show documents proving status
Greater scrutiny and rejection of valid documents from immigrants
Covers all employers of more than 3 employees
Protected Persons
U.S. citizens and nationals, and all legal workers
Employment Eligibility Verification: I-9 and Discrimination Issues

22. Intimidation or Retaliation
Person or entity may not: Intimidate Threaten Coerce Retaliate Against Any Person
To interfere with right/privilege secured under Section 1324b Or
Because person intends to, or has:
Filed a charge or complaint, or
Testified, assisted or participated in an investigation or hearing
Employment Eligibility Verification: I-9 and Discrimination Issues

23. How to File a Charge with OSC?
Charge must be filed within 180 days of Discrimination:
Charge forms available from the OSC Web site in English, Spanish, and Chinese at:
Charges may be filed in any language
Injured parties or advocates can file charges
OSC will complete investigation within 7 months
For further information, charge forms, or any questions, contact OSC’s Worker Hotline at:
Employment Eligibility Verification: I-9 and Discrimination Issues

24. After a Discrimination Charge is Filed…What Happens?
180days
Discrimination occurs
Investigation by OSC
File Charge with OSC
After 120days
Employment Eligibility Verification: I-9 and Discrimination Issues

25. After 120days Within 90days Within 90days OSC finds no cause:
Notifies Parties
OSC does not make a decision:
Notifies Parties
OSC finds cause:
Notifies Parties and Seeks Resolution
Within 90days
OSC Investigation continues
Within 90days
Within 90 days
Injured person files
complaint with ALJ
OSC or injured person files
complaint with ALJ
Either OSC or injured person files complaint with ALJ
Settlement attempts
Discovery
Employment Eligibility Verification: I-9 and Discrimination Issues

26. Appeal by either party to:
Summary:
180 days to file charge…OSC investigation (7 months)... File suit during last 90 days
Discovery
Settlement attempts
Hearing with ALJ
No violation
ORDER
Violation
Appeal by either party to:
U.S. Court of Appeals
Final Appeal to:
U.S. Supreme Court
Employment Eligibility Verification: I-9 and Discrimination Issues

27. Remedies Hire or rehire Backpay Cease and desist Civil Penalties
Training
Monitoring
Attorney’s Fees
Employment Eligibility Verification: I-9 and Discrimination Issues

28. Civil Penalties Citizenship Status Discrimination/
National Origin Discrimination
1st Violation……… $ $2,200
2nd Violation……… $2, $5,500
Subsequent Violations…….. $3, $11,000
Civil Penalties continue to increase
Document Abuse Violations…....$110 - $1,100
Employment Eligibility Verification: I-9 and Discrimination Issues

29. Form I-9
Employment Eligibility Verification: I-9 and Discrimination Issues

30. I-9 Process
Section 1
(Employee Information and Verification)
Employee must complete, sign and date Section 1 on first day of work
Potential Problems
Employment Eligibility Verification: I-9 and Discrimination Issues

31. A Citizen or National of the United States
I Attest, Under Penalty of Perjury, that I Am (check one of the following):
A Citizen or National of the United States
A Lawful Permanent Resident (Alien # A __)
An Alien Authorized to Work Until __/__/__
Alien # or Admission # __________
Employment Eligibility Verification: I-9 and Discrimination Issues

32. An Alien Authorized to Work Until __/__/__
Do Refugees and Asylees always have an expiration date?
What if possess an Unrestricted Social Security Card and Driver’s License, but Not an EAD?
If no Expiration Date, Write __/__/__ “N/A – Asylee” or “N/A – Refugee”
Employment Eligibility Verification: I-9 and Discrimination Issues

33. I-9 Process (Cont’d) Categories of Acceptable Documents:
List A (Both ID and Employment Eligibility)
List B (ID Only)
List C (Employment Eligibility Only)
Employment Eligibility Verification: I-9 and Discrimination Issues

34. I-9 Process (Cont’d)
Additional List C Documents: Unexpired EAD issued by DHS:
Form I-94 identifying holder as asylee or other DHS document identifying individual as authorized to work incident to status
Does not include IJ decision
Special Note: I-94 with errors Yates Memo
Employment Eligibility Verification: I-9 and Discrimination Issues

35. I-9 Process (Cont’d) (Employer Review and Verification)
Section 2
(Employer Review and Verification)
Examine documentation to determine whether reasonably appears to be genuine and relates to the employee
Record document(s) in appropriate column
Sign and date certification section
Employment Eligibility Verification: I-9 and Discrimination Issues

36. I-9 Process (Cont’d) Provide employee with at least 90-day notice
Section 3
(Updating and Re-verification)
Provide employee with at least 90-day notice
Accept any document from List A or List C
Do not re-verify List B identity documents
Do not re-verify employees who present resident alien cards with future expiration dates
Do not require specific document for re-verification; can accept unexpired Social Security cards
Employment Eligibility Verification: I-9 and Discrimination Issues

37. Jenifer Sultan,
Trial Attorney, Office of Special Counsel for Unfair Immigration-Related Employment Practices
(NOTE: Use this slide to transition between speakers and introduce new speakers/presenters during the presentation.)
Employment Eligibility Verification: I-9 and Discrimination Issues

38. Electronic Verification of Employment Eligibility by DHS and SSA
E-Verify (formerly the Basic Pilot Program)
Electronic Verification of Employment Eligibility by DHS and SSA
Is it Failsafe?
Employment Eligibility Verification: I-9 and Discrimination Issues

39. DHS–Sponsored Study Found:
Pre-Employment Screening
Not Allowing Workers to Correct Errors
Not Informing Workers of E-Verify participation
Refusals to Hire/Premature Terminations
Privacy and Training Concerns
Inaccuracy of DHS Data Base
Employment Eligibility Verification: I-9 and Discrimination Issues

40. E-Verify USCIS Guidance:
E-Verify User Manual
For workers:
In Spanish:
Employment Eligibility Verification: I-9 and Discrimination Issues

41. How to Respond to Social Security “No-Match” Letters
Check Records for Errors
Inform Employee of the No-Match Letter
Request that Employee Check Their Records for Errors
Refer Employee to the Local Social Security Administration (SSA) Office for Assistance
Submit any Employer or Employee Corrections to the SSA
Employment Eligibility Verification: I-9 and Discrimination Issues

42. OSC works in partnership with other Federal, State and local civil rights and labor law agencies, as well as trade associations, labor and community groups. If we can’t help you , we can direct you to the appropriate office for assistance.
Employment Eligibility Verification: I-9 and Discrimination Issues

43. Telephone Intervention System
As an alternative to the charge process, OSC resolves over 150 cases annually through its speedy Telephone Intervention System for willing employers and workers.
Employment Eligibility Verification: I-9 and Discrimination Issues

44. Resources
Cartoon Booklet
Employer Guide
If you have any questions, or need printed materials, call the toll-free number:
Employee:
Employer:
Web site:
Worker Brochure
Employer Brochure
Employment Eligibility Verification: I-9 and Discrimination Issues

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Employment Eligibility Verification: I-9 and Discrimination Issues

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Employment Eligibility Verification: I-9 and Discrimination Issues

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Employment Eligibility Verification: I-9 and Discrimination Issues

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Employment Eligibility Verification: I-9 and Discrimination Issues

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Employment Eligibility Verification: I-9 and Discrimination Issues

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Employment Eligibility Verification: I-9 and Discrimination Issues