4 Best Practices to Protect Against Form I-9 Discrimination

A major vacuum manufacturer recently suffered discrimination allegations when it imposed unnecessary documentation requirements on lawful permanent residents, or green card holders. Under the Immigration and Nationality Act (INA), employers are prohibited from treating permanent residents differently from U.S. citizens. However, the company required its permanent resident workers to provide new documentation when their green cards expired, while employees with U.S. citizenship were not asked to present any new documents.

In November 2010, the manufacturer reached a settlement with the Department of Justice to resolve the discrimination allegations. The settlement terms included civil penalties, Form I-9 employee training, and periodic reports to the Department of Justice for one year.

Similar to an IRS audit, an I-9 discrimination lawsuit is not an everyday occurrence, but it is a risk that employers should be aware of. An I-9 discrimination lawsuit can result in fines, government oversight, and reputation damage. To better protect your company from Form I-9 discrimination litigation, consider the following four recommendations:

1. Don’t tell employees which document to use
If an employer specifies which document a particular type of employee must present, it could result in a discrimination complaint. One way to reduce the likelihood of discrimination allegations is to allow employees to choose one document from the list of acceptable employment verification documents. This eliminates any perceived discrimination from the documentation component of Form I-9 verification.

2. Be aware of re-verification
There are three classes of employees identifiable on a Form I-9: U.S. citizens, permanent residents, and authorized aliens. Under the INA, employers cannot treat permanent residents or green card holders differently than U.S. citizens. Although permanent resident documents have an expiration date, per I-9 instructions and the INA, employers do not need to re-verify permanent residents. An employer who re-verifies permanent residents is exposed to a higher risk of I-9 discrimination litigation.

3. Avoid over-documentation
Discrimination can also occur if an employer asks for excessive documentation. For example, if a U.S. citizen presents one of the items on the list of acceptable documents, it is not permissible for an employer to then ask for further documents. If an employer asks for more documents than are required, for any class of employee, it could result in a discrimination incident.

4. Provide employee training
The more educated your employees are about the requirements of I-9 forms, the less likely it is that discrimination will occur. Some companies have inexperienced personnel managing the I-9 process. To mitigate the risk of Form I-9 discrimination, provide training for all employees involved in the I-9 process—whether they are in the human resources department or not.

How an electronic Form I-9 system can help
An electronic I-9 system helps employers mitigate the risk of discrimination in four ways:

1. An electronic I-9 system does not specify which documents to present, but requires employees to choose from a list of acceptable documents.
2. Electronic systems prevent over-documentation by accepting only one document.
3. Automatic monitoring identifies employees that require re-verification and delivers e-mail alerts.
4. Electronic systems add a consistent process, error correction tools, and intelligence features to make it easier for inexperienced employees to maintain I-9 compliance.

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