According to a recent announcement from the Department of Justice, a Maryland-based cleaning and janitorial company reached an agreement with the Department of Justice to settle allegations of discrimination against noncitizen workers. The announcement highlights the importance of ensuring compliance with the Immigration and Nationality Act (the “INA”) and the consequences of failing to do so.
Allegations of Discrimination Against Noncitizens
According to the Department of Justice, an investigation into the Maryland-based company revealed that the company routinely required specific documents from newly hired noncitizen workers to prove their legal permission to work in the United States. Specifically, the company would ask lawful permanent resident workers to provide their permanent resident cards (also known as “green cards”) and for asylees to provide their employment authorization documents. At the same time, the company would allow for citizens of the United States to choose from the list of acceptable documents pursuant to Form I-9, which is discussed below. Accordingly, the company imposed an additional burden on noncitizens during the onboarding process. The imposition of such a burden on noncitizens constitutes unlawful discrimination under the INA.
Under the terms of the settlement agreement, the company will pay a civil penalty of $300,000, and the company has agreed to train staff on the anti-discrimination provisions of the INA, changes its policies, and remain subject to departmental monitoring for a period of three years.
The I-9 Verification Process
Form I-9, Employment Eligibility Verification, is a standardized form used by the United States Citizenship and Immigration Services (“USCIS”) for employment verification in the United States. Mandated by the Immigration Reform and Control Act of 1986, Form I-9 is used to verify the identity and legal authorization of all employees who work in the United States. During the I-9 process, the employee must provide their employer with documentation that proves their legal status to work in the United States. For most of its history, the I-9 process required an employer to physically examine an employee’s documentation for employment eligibility verification.
Anti-Discrimination Under the Immigration & Nationality Act
The anti-discrimination provisions of the INA can be found at 8 U.S.C § 1324(b) and its associated regulations at 28 C.F.R. Part 44. These provisions of the INA prohibit discrimination based on citizenship status and national origin in the hiring, firing, recruitment, and referral of workers for a fee. The provisions also outlaw unfair documentary practices, such as the one involved in this case. Finally, these laws make it illegal to retaliate or intimidate protected persons who file a discrimination-related complaint against the employer. Failure to comply with these laws can result in prosecution, leading to civil penalties and other sanctions.
The DOJ Civil Rights Division’s Immigrant and Employee Rights Section (“IER”) enforces the anti-discrimination provisions of the INA. Under the Biden administration, enforcement of these laws has been steady. According to Assistant Attorney General Kristen Clarke of the DOJ Civil Rights Division, “employers cannot treat employees differently because of citizenship, immigration status, or national origin when verifying their permission to work. The Justice Department will continue to vigorously enforce the law to ensure that workers do not face discrimination when proving their permission to work in the United States.”
DOJ Enforcement of Discrimination Claims
The Biden administration continues its focus on enforcement of the anti-discrimination provisions of the INA to protect vulnerable noncitizen employees from unfair and illegal practices. This settlement is only the most recent in a series of such settlements which have taken place over the last few years. For this reason, it is more important than ever for businesses to ensure full compliance with immigration law to avoid the profound consequences seen here.