As the 10th anniversary of the attacks of “9/11″ approaches, those of us who practice immigration law, in particular business immigration law, have seen substantial shifts in immigration enforcement at the worksite. Immediately following the attacks, Immigration and Customs Enforcement (ICE), the immigration enforcement component of the Department of Homeland Security (DHS), focused its attention almost exclusively on “critical infrastructure protection.”
Initiatives such as Operation Tarmac (airports) and Operation Glow Worm (power plants) reflect the agency’s national security priority in immigration enforcement. Over time, the Bush Administration also conducted raids against industries that traditionally have problems with unlawful employment, resulting in arrests of illegal laborers and charges of not only civil immigration violation but also criminal identity theft. The Obama administration changed the direction of worksite enforcement and shifted its focus onto the employers. Consequently, the number of audits and fines imposed against employers since 2009 has skyrocketed to unprecedented levels.
Reports of ICE activities have sensitized employers to the need for strict employment eligibility verification. However, the employers often forget about another side to their compliance obligations – that of avoiding immigration-related unfair employment practices.
On August 22, the Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (“OSC”) slapped the highest fine ever against an employer for “discrimination.” The $290,400 whammy, far more than the previous record of $257,000 set in October 2010, was part of a settlement with Farmland Foods Inc., a major U.S. pork producer based in Kansas City.
So here’s the thing: OSC did not allege discriminatory malice—nor did it have to. Instead, according to the Justice Department’s press release, the pork producer’s sin was demanding more documents than the law requires from newly hired non-U.S. citizens during the employment eligibility verification (I-9) process. This case follows numerous others brought against a wide range of employers for similar conduct, from a nonprofit hospital for low income patients in California to a community college system in Arizona.
The unfortunate common theme in all of these cases is that the employers could have easily avoided the costly fines. OSC, by law, only needs to show “disparate treatment” during the employment verification process to bring its cases. Consequently, the employers’ action in demanding more documents than necessary because of one’s citizenship status was enough to support the imposition of the penalties. To avoid this pitfall, the employer just needs to train its human resources staff to look only at the appropriate documentary requirements, printed on the back of every I-9 form, and not to ask for anything else – regardless of citizenship status of the employees.
The latest OSC action is a stark reminder that proper I-9 audit and training, including anti-discrimination training, is an integral part of every corporate compliance program. Just as DHS is stepping up its enforcement efforts, OSC does not appear to be slowing down either. It is a fine line to walk between Homeland Security’s and OSC’s enforcement interests. But with proper training, employers attempting to comply with all the laws won’t need to write such big checks in the future.