A settlement reached by Immigrant and Employee Rights Section (IER) of the United States Department of Justice and a private security services company demonstrates how easy it is for companies to go awry of I-9 compliance.
The settlement is the culmination of an investigation into whether the private security company discriminated against a worker by requiring documentation above and beyond that required to complete the I-9 process. In this particular instance, the complainant was a noncitizen in lawful permanent resident status.
The IER investigation concluded a company HR manager discriminated against the employee by declining to place him at a client worksite. The complainant presented a Permanent Resident Card and an unrestricted Social Security card, but the HR manager refused to accept this documentation and, instead, requested that the complainant provide different documentation. In the I-9 process, a company is not allowed to request specific documentation from an employer nor can the company refuse to accept a listed I-9 document that reasonably relates to the individual.
Under the settlement, the private security company has been ordered to pay more than $13,00 in back pay to the former employee, pay $1,400 to the U.S. treasury, and go through I-9 training and departmental monitoring.
The IER did not look at the HR manager’s intentions, rather, it focused on the specific action of requesting more documents and/or different documents than required by the I-9 process. It was the act, not the intent, that was discriminatory and one that can be avoided with proper training and understanding, as well as proper policies and procedures in place.
FordMurray provides I-9 Compliance Training for all types of organizations from large, public hospitals and universities to small, private employers, including implementing proper policies, procedures, and protocols for handling the I-9 process from start (having a new employee complete the I-9) to finish (how to store and dispose of I-9 properly). It is critical that HR team members are familiar with all applicable List A, List B and List C documents, especially those outside of the driver’s license, social security cards and passports.
I-9 Compliance Pointers
- Employers should not specify what document the employee presents at any time in the I-9 process, including in the reverification process. At the time the new documentation is provided, the employer should complete Section 3 of the form as reverification of the individual’s right to keep working.
- It is not the employer’s responsibility to determine whether a Section 2 document is fraudulent. If it appears valid and related to the individual, accept the document and complete the Form I-9.
- Although the government has relaxed the rules on personal inspection of documents during COVID, those changes are temporary and employers should monitor the news to ensure that they are maintaining proper compliance regarding review and inspection of an employee’s documents in the I-9 process.
- The best way to avoid a discrimination claim in the I-9 process is to have a clearly defined procedure in place for how the I-9 is issued to an employee, how the I-9 form is completed and when, who will handle the I-9 process for the organization, and to ensure those involved have the proper training and resources.