The Department of Justice (DOJ) has recently announced the reaching of a settlement with a Washington state-based at-home health care provider. This settlement resolves the DOJ’s claims that the employers had committed violations of the Immigration and Nationality Act (INA) by discriminating against non-citizens through its use of the E-Verify system.

The E-Verify system is an electronic system that allows authorized employers to verify the authorization of their employees to work in the United States. However, the Assistant Attorney General of the Justice Department’s Civil Rights Division warns that this program cannot be used to discriminate against workers based on their citizenship or immigration status.

The INA forbids employers from discriminating against individuals in the hiring, recruitment, and firing process based on citizenship or immigration status and unfair documentary practices. Discrimination in violation of the INA is enforced by the DOJ’s Civil Rights Division’s Immigrant and Employee Rights.

In this case, the DOJ opened an investigation to determine whether the home care provider was using E-Verify in a selective and discriminatory fashion against solely non-U.S. citizens. The DOJ found that the employer used the E-Verify system to confirm employment authorization for its non-U.S. citizen employees. Though the employer only received positive responses from the E-Verify system and thus never needed to take adverse action against any employee, the DOJ still found that by only subjecting non-citizens to this extra step, it placed an additional burden upon these employees selectively. This violates both the INA and the E-Verify programs’ rules, which forbid discrimination based upon an employee’s citizenship or immigration status.

Under the settlement which the DOJ reached with the employer, the latter agrees not to use the E-Verify system to discriminate against their employees based on their citizenship or immigration status. Further, the employer agreed to provide its employees with training on the anti-discrimination requirements of the INA and to change its policies in order to comply. Lastly, the employer agreed to be subject to additional monitoring to ensure that it complies with these measures over the next three years.

As this case demonstrates, completing employment eligibility verification, including through E-Verify and the associated Form I-9, can be a complex process that can easily result in penalties and lengthy investigations. The best way to ensure compliance is by using an electronic I-9 management tool. This can guide hiring personnel every step of the way while ensuring that documentation is stored correctly.

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