How to Minimize Risks of I-9 Discrimination Lawsuits

by Blake Forrester March 16, 2011

Employers who request unnecessary documentations from employees who are permanent residents may be guilty of breaching I-9 compliance and may be at risks of discrimination lawsuits.

In 2010, a renowned vacuum manufacturer found out the hard way that requesting its permanent resident employees to produce documentation as proof of their statuses after their green cards have expired was indeed a risky move. According to the Immigration and Nationality Act (INA), all employees should be treated alike whether they are citizens or permanent residents.

Faced with damaging discrimination allegations, the manufacturer finally settled its dispute with the Department of Justice and agreed to extend civil penalties to the plaintiff, conduct employee training sessions on Form I-9 as well as to submit annual reports to the Department of Justice over a specified period.

I-9 Compliance is a crucial element in human resources management and like tax audits, should be taken seriously. If employers are found guilty of not adhering to I-9 compliance practices, they may be subject to fines and penalties based on government misconduct as well as suffer reputation losses.

However, the current political and economic climate in America requires all employers to verify the legal statuses of their employees. After all, an employer that hires employees who are not legally eligible to work in the country is also guilty of breaking the law. With these considerations, employers should take all measures to adhere to I-9 compliance practices that help employers verify the statuses of their employees while reducing their risk of discrimination lawsuit.

The first thing employers should avoid is to dictate the type of documents employees should submit in order to proof their legal statuses. There are various official documents a permanent resident or authorized alien can use as proof of their statuses in the country. Therefore, by insisting that they submit a particular document may be viewed as a discriminatory act on the part of an employer.

Another aspect of Form I-9 non-compliance is when employers request for excessive documents that may not be necessary according to I-9 requirements. Employers who demand the proof of additional documents that are above the requirements of the law may be at high risks of facing discrimination lawsuits.

Employers who request for employees to re-validate their statuses after their green cards have expired are also at risk of discrimination allegations. According to Form I-9 and INA regulations, employees who are permanent residents are under no obligation to re-validate their statuses to their employers; employers who ask for them may be held liable for differential treatment.

Most discrimination allegations are borne out of misunderstanding or miscommunication between the employer and employees. Therefore, employers should address the issue by educating and informing their employees through Form I-9 training in order to allay any misunderstanding that may occur about I-9 compliance matters.

Finally, employers should consider the advantage of utilizing electronic administration of I-9 practices. The electronic system automatically sends prompt alerts and conveys the guidelines clearly to employees according to INA’s requirements so that they are aware about the importance of I-9 compliance.

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