On August 25, 2021, the Department of Justice (DOJ) announced that it reached a settlement with a Missouri based healthcare organization. The healthcare organization has more than 2,600 sites, including 146 hospitals and more than 40 senior living facilities in 19 states and the District of Columbia.
The settlement resolves the DOJ’s claims that the healthcare organization violated the Immigration and Nationality Act (INA) when it discriminated against work-authorized non-U.S. citizens because of their citizenship status by requesting more or different documents than necessary when attempting to reverify their continued work authorization.
Based on its investigation, the DOJ determined that the healthcare organization automatically requested that its non-US citizen employees present new documents to prove their continued work authorization, even in situations where it was not required. The healthcare organization utilized a customized employment eligibility verification software program to electronically complete the Form I-9 and track the expiration dates of non-US citizen employee documents. The investigation found that the healthcare organization improperly programmed the software to send automated emails requesting proof of continued work authorization to all non-US citizen employees, including US nationals, lawful permanent residents, and asylees and refugees close to the expiration date of the documents they provided when completing the Form I-9. These non-US citizen employees often presented documents that did not require reverification of employment eligibility. In some instances, after sending these emails, the healthcare organization further required non-US citizen employees to present new documents in order to continue working. In contrast, they did not program the software to send emails to US citizens, and therefore did not notify US citizens near the expiration date of their documents.
Federal law allows all work-authorized individuals, regardless of citizenship status, to choose which valid, legally acceptable documentation to present to demonstrate their identity and authorization to work in the United States. Many non-US citizens, including lawful permanent residents, refugees, and asylees, among others, have work authorization that does not expire, and are eligible for several of the same types of documents as US citizens (such as driver’s licenses and unrestricted Social Security cards) to prove their work authorization. The INA’s anti-discrimination provision prohibits employers from requesting more or different documents than necessary to prove work authorization based on employees’ citizenship, immigration status, or national origin.
Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division stated, “ Employers are reminded that while software programs may seem efficient, there is still a responsibility to ensure that programming decisions do not result in discrimination. The settlement makes clear that the Justice Department will vigorously enforce federal civil rights laws and hold employers accountable if their software results in unlawful discrimination.”
Under the terms of the settlement agreement, the healthcare organization will pay the United States a civil penalty of $84,832. Also, the healthcare organization will train its employees on the requirements of the INA’s antidiscrimination provision, including the Civil Rights Division’s Immigrant and Employee Rights (IER) provided training, and be subject to monitoring for a three year period to ensure the company is complying with the agreement.
The IER is responsible for enforcing the antidiscrimination provision of the INA. The statute prohibits citizenship or immigration status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; and retaliation and intimidation.
A brief video to learn about IER’s work and how to get assistance can be accessed here.
Applicants or employees who believe they were discriminated against based on their citizenship, immigration status, or national origin in hiring, firing, recruitment, or during the employment eligibility verification process (Form I-9 and E-Verify), or subjected to retaliation, can file a charge.
The public can also contact IER’s worker hotline at 1-800-255-7688; call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); or email IER@usdoj.gov.
The DOJ’s Civil Rights Division free webinars for both human resource representatives and for workers or their advocates can be accessed here.
Compliance Perspective
Issue
All employers must enforce the antidiscrimination provision of the Immigration and Nationality Act. It is imperative that staff members with the responsibility for verifying and documenting employees’ rights to work in the US are well versed in the antidiscrimination provision of the INA. Violations of the INA can result in civil and monetary penalties.
Discussion Points
- Review your policies and procedures on enforcing the Immigration and Nationality Act. Update as needed.
- Train all relevant staff on the Immigration and Nationality Act and your policy and procedure. Document that these trainings occurred and file the signed document in each employee’s education file.
- Periodically audit to ensure that discrimination has not occurred in the verification and documentation process of employees’ information.
