Trends are emerging from the enforcement of immigration anti-discrimination laws under the Biden administration’s Department of Justice. The DOJ has remained active at a rate similar to that of the last administration in terms of immigration-based settlements, including 10 from July 2021 to December 2021.
Some of these investigations were initiated during the Trump administration, but their focus and terms provide key insights into how the DOJ is expected to investigate and litigate in 2022 and going forward.
The enforcement of the anti-discrimination provisions of the Immigration and Nationality Act (INA) is a key focus. These provisions prohibit a range of employment-based discrimination, including: citizenship or immigration status discrimination by employers with four or more employees; national origin discrimination by employers with more than three and fewer than 15 employees; unfair documentary practices; and retaliation/intimidation.
The DOJ’s Immigrant and Employee Rights (IER) division is responsible for enforcing the anti-discrimination provisions of the INA. The IER settled 19 cases over the course of 2021 against employers from a variety of industries, including tech, retail, legal services, private security, a school board, manufacturing, and staffing, among others.
Focus on Discrimination Against U.S. Workers
The focus of President Trump’s DOJ and IER and its enforcement of the anti-discrimination provisions of the INA was protection of U.S. citizen workers. While Biden’s DOJ and IER appear to be diversifying the scope of its investigations, several settlements in 2021 involved allegations of discrimination against U.S. citizen workers, suggesting that employers should remain on high alert for any practices that may be problematic in this regard.
On Aug. 17, 2021, IER signed a settlement agreement with Ameritech Global Inc. (Ameritech), resolving a reasonable cause finding that Ameritech discriminated against U.S. workers by posting job advertisements specifying a preference for applicants with temporary work visas and failing to consider at least three U.S. worker applicants who nevertheless applied to the advertised positions.
Under the agreement, Ameritech will pay a civil penalty, revise its policies and procedures, train relevant employees and agents on the requirements of the INA’s anti-discrimination provisions, and be subject to departmental reporting requirements during the agreement’s two-year term.
Similarly, on Sept.14, 2021, IER signed a settlement agreement with Challenger Sports Corp. (Challenger) to resolve a reasonable cause finding that Challenger committed citizenship-based discrimination.
Specifically, IER alleged that Challenger, which provides soccer instruction to youth throughout the U.S., failed to consider qualified U.S. workers for full-time soccer instructor positions in Spring 2019 based on a preference for H-2B visa workers. The H-2B visa is a temporary visa often used for seasonal workers (non-agricultural). The parties have agreed that Challenger will pay a civil penalty, establish a back pay fund, and be subject to monitoring and reporting requirements.
Our takeaway for employers: Consider the impact of onboarding and human resources policies on U.S. citizen workers and do not limit anti-discrimination considerations to non-citizens. Never specify that foreign workers or particular visa types are preferred in job postings.
Return to a Classic Focus: Document Abuse
One of the classic focuses of the DOJ and IER—document abuse—appears to be making a comeback. There are very specific rules governing the Form I-9 completion, maintenance, and reverification process. The Form I-9 must be completed by all employees of any U.S. company to verify work authorization of all workers within 3 days of hire.
One of the limitations of the governing laws is that employers cannot demand, or request, that an employee/new hire present specific documents to establish their U.S. work authorization. Rather, employers must provide specific information regarding the long list of documents and combination of documents that can suffice to establish U.S. work authorization, and allow the employee/new hire to present any qualifying documents that they choose.
On Sept. 15, 2021, IER signed a settlement agreement with DC Precision Machining Inc., resolving a reasonable cause finding that the company discriminated against its workers by requesting specific employment eligibility documents for the Form I-9 process based on each worker’s citizenship status. IER’s investigation also found that the company terminated a U.S. citizen worker when she refused to present the requested document, even though she had already presented sufficient documentation to complete the Form I-9.
Under the agreement, DC Precision Machining will pay back pay over $21,000 to the worker, pay a civil penalty of $13,400 to the U.S., revise its policies and procedures, train relevant employees on the requirements of the INA’s anti-discrimination provisions, and be subject to departmental reporting requirements during the agreement’s two-year term.
On June 24, 2021, IER signed a settlement agreement with Easterseals-Goodwill Northern Rocky Mountain, Inc. (ESGW), resolving claims that ESGW engaged in unfair documentary practices based on citizenship status.
IER’s investigation found that ESGW, a non-profit organization headquartered in Great Falls, Mont., discriminated against an asylee by rejecting her documents that actually were valid proof of work authorization and demanded different documents to verify her employment eligibility, based on her immigration status. The investigation also determined that ESGW required other non-U.S. citizens to present unnecessary immigration documents to prove their authorization to work in the U.S.
The settlement agreement requires ESGW to pay a civil penalty of $6,186, train relevant employees on the requirements of the INA’s anti-discrimination provisions and undergo departmental monitoring for two years.
Our takeaway for employers: Never require or demand that specific documents be presented for Form I-9 completion or reverification. Always refer employees/new hires to the USCIS’ list of acceptable documents for Form I-9 completion.
Much remains uncertain, but the above takeaways should guide employers towards compliance in 2022 and beyond. Consulting with legal counsel to discuss questions relating to anti-discrimination enforcement and compliance is an important step, as one small mistake can lead to large consequences for employers in the context of a future investigation.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Jessica Nall is a partner at Baker McKenzie in its San Francisco and Palo Alto offices. She has experience in defending government enforcement cases in the tech industry and has helped public and private companies navigate high-profile crisis situations involving enforcement and compliance, including investigations of allegedly discriminatory practices related to immigration.
Matthew Gorman is an associate in the Global Immigration & Mobility practice at Baker McKenzie in Washington, D.C. He advises on corporate and employment-based immigration law, including work visa petitions, permanent residence and permanent employment certification applications.