Authored By: GryphonHR Blog Contributor
GryphonHR blog contributors include , consultants, researchers, and other subject-matter experts who’ve written content for our blog.
DOJ Settlements and I-9 Violations
April 30, 2023
Share this article:
The Costly Consequences of Discrimination and Form I-9
The Form I-9 is an essential document used to verify the identity and employment eligibility of individuals hired for employment in the United States. Recent settlements between the Department of Justice (DOJ) and employers demonstrate the costly consequences of non-compliance with Form I-9 requirements, including discrimination. Employers who fail to properly complete and maintain Form I-9 for their employees’ risk significant financial penalties, as well as potential liability for discrimination. In this blog post, we will explore the growing trend of DOJ settlements with employers for violations of Form I-9 requirements and the consequences of discrimination during the I-9 process.
Compliance with the Immigration and Nationality Act and Form I-9
Although, administrative compliance procedures to properly complete, store, and retain Form I-9 and related documents should remain a top priority for HR and staffing professionals, paying heed to anti-discrimination practices during the hiring process should also be considered.
For example, requiring specific documents to verify identity and work authorization from only certain employees can be considered discriminatory; this includes documents such as passports or driver’s licenses. In addition, examining documents too closely and failing to use good faith efforts when reviewing a potential employee’s form can also give rise to discriminatory claims.
Under The Immigration and Nationality Act (INA) employers cannot discriminate based on citizenship, immigration status or national origin at any stage of the hiring process, unless required or allowed by law.
Settlements between U.S. employers and the DOJ regarding INA violations this year include:
1. April 2023, In a settlement reached with a Boise, Idaho manufacturer, the DOJ determined that the employer unlawfully preferred a temporary visa worker for the position, failing to meaningfully consider the U.S. citizen’s qualifications. Under the settlement, the manufacturer is ordered to pay a civil penalty to the United States and offer back pay totaling $85,000 to the affected worker. Additionally, the company will train its staff on the INA’s anti-discrimination provision, change its policies and procedures and be subject to departmental monitoring for a two-year period.
2. April 2023, The DOJ determined that one of the “Big Three” automotive manufacturers unnecessarily required lawful permanent residents to provide an unexpired foreign passport as a condition of employment, imposing a discriminatory barrier on them in the hiring process. Under the terms of the agreement, the auto maker will pay $365,000 in civil penalties to the United States. The agreement also requires the employer to train personnel on the INA’s requirements, revise its employment policies and be subject to departmental monitoring and reporting requirements.
3. April 2023, The DOJ’s investigation of a restaurant franchise in Florida began when a worker, a non-U.S. citizen, complained that the franchise refused to accept her valid documentation proving her permission to work and demanded additional documentation. Although she had permission to work in the United States, she was not able to obtain one of the documents that the employer required because of her citizenship status. Employers must allow workers to present whatever acceptable documentation the workers choose and cannot reject valid documentation that reasonably appears to be genuine. The settlement requires the franchise to pay a civil penalty to the United States, provide backpay to the worker who filed the compliant, train staff on the INA’s anti-discrimination provision and be subject to departmental monitoring for a period of three years.
4. January 2023, A Minnesota based staffing firm was ordered to pay a civil penalty of $250,000 to the United States, and $100,000 for a back pay fund to compensate victims of the staffing company’s alleged discriminatory practices. The DOJ investigation determined that the staffing firm routinely required specific documents from newly-hired non-U.S. citizens to prove their permission to work in the United States.
In a recent press release the Justice Departments Assistant Attorney General, Kristen Clarke, stated, “When employees present legally acceptable documentation to demonstrate their permission to work, employers cannot demand different or additional documents because of the employees’ citizenship or immigration status.” The Justice Department will continue the important work of ensuring that workers do not face unlawful barriers to employment.”
The DOJ settled with several employers in recent months and years. The trend of investigations conducted by the Immigration and Employee Rights (IER) section of the DOJ, shows no signs of slowing down. Employers should be sure to make every aspect of compliance with employment eligibility and verification a top priority.
Avoiding Discriminatory Practices During the Form I-9 and Hiring Process
Providing appropriate training for staff on proper Form I-9 completion techniques can help prevent any unfortunate discrimination allegations from occurring. To ensure compliance with Form I-9 requirements it is essential for employers to keep up with federal guidance from agencies like the DOJ and The Department of Homeland Security (DHS) as well as other state laws or regulations governing E-Verify. By doing so, organizations can help to protect themselves from costly fines associated with improper employee verification procedures.
As mentioned in IER’s guidance: “Employees do not need to prove their citizenship status to employers when they complete the Form I-9. Asking an employee for proof of citizenship or immigration status could violate the law at 8 U.S.C. § 1324b(a)(6). For example, asking an employee who marks “U.S. citizen” to present a naturalization certificate or U.S. passport, or asking a lawful permanent resident (LPR) to present a Permanent Resident Card (PRC) could be unlawful discrimination under this part of the law.”
Furthermore, it is important for HR and staffing professionals to keep their hiring processes uniform and consistent. An electronic I-9 platform can help employers to ensure that documents are properly verified to help avoid discrimination. Contact us to learn more about how GryphonHR can help to ensure compliance requirements are met throughout the entire Form I-9 and E-Verify process.
Share this blog:
Recent Blog Articles
With hiring processes more complex than ever, E-Verify offers HR teams a streamlined, efficient way to confirm the work eligibility of new hires. However, navigating the E-Verify system can be overwhelming for HR professionals, especially as legal compliance around employment eligibility intensifies. Fortunately, technological solutions, such as GryphonHR’s platform, make E-Verify faster, more secure, and easier to integrate with existing systems. This guide walks you through the E-Verify process step-by-step, offering insights on how HR technology simplifies each stage for a seamless experience. Step 1: Registering with E-Verify Process Overview To start using E-Verify, your organization must first enroll in the system. Registration is typically straightforward but involves a few important steps to ensure compliance and user security. Steps to Register: Visit the E-Verify Website : Go to the official E-Verify website (www.e-verify.gov) and select the option to "Enroll." Read and Accept the Terms : You will need to review and agree to the program rules, and establish an Enrollment Point of Contact. This person is responsible for managing the E-Verify enrollment process for your company. Enter Company Information : Input basic company details, such as business address, Employer Identification Number (EIN), and industry type. Create User Accounts : Identify which employees will have access to E-Verify. Each will need a secure account with unique login credentials. How HR Technology helps: HR technology solutions can simplify registration by securely storing and managing information required for enrollment, reducing the time spent on administrative tasks. Many HR platforms also integrate directly with E-Verify, allowing for easier user access and management. Step 2: Gathering Necessary Employee Documentation Process Overview To complete an E-Verify check, employees need to provide documents that confirm both identity and eligibility to work in the U.S. Typically, this step involves I-9 Form documentation, such as a passport or a combination of documents (e.g., driver’s license and Social Security card). Note that a Social Security Number is required to create a case in E-Verify. Steps for Documentation Gathering: Complete Form I-9 : Collect the employee's I-9 form and ensure all information is accurate. Verify Acceptable Documents : Cross-check that the documents provided are valid and current. Retain Copies (if applicable) : Although not required by E-Verify, retaining copies of I-9 documents may help with internal recordkeeping. How HR Technology Helps: HR tech tools streamline this stage by incorporating automatic prompts to verify which documents are acceptable, automatically filling out fields, and securely storing these documents to prevent loss and unauthorized access. Step 3: Initiating the E-Verify Process for a New Hire Process Overview Once documentation is ready, you can enter the information into E-Verify to confirm work eligibility. This step involves several sub-steps and should be completed within three days of the employee’s start date. Steps to Initiate E-Verify: Log in to E-Verify : Access your account through a secure connection. Select “New Case” : Start a new case for each employee. Enter Employee Details : Input information from the I-9 form, including the employee’s name, Social Security number, and document numbers. Review and Confirm : Double-check the accuracy of all entries and submit the case for verification. How HR Technology Helps: Platforms that integrate with E-Verify allow HR teams to initiate and complete E-Verify cases without leaving their existing HR system. This integration minimizes data entry errors, reduces manual input time, and allows for real-time tracking. Step 4: Reviewing E-Verify Results Process Overview After submitting a case, E-Verify will typically respond within seconds. There are three potential responses: Employment Authorized : The employee is authorized to work in the U.S. Tentative Nonconfirmation (TNC) : There is an issue with the information provided. HR must notify the employee, who can contest the TNC. Case in Continuance : Additional verification is required. Steps for Reviewing Results: Check Case Status : Log in to E-Verify to view the case results. Follow Up as Necessary : If there is a TNC, notify the employee within the E-Verify timeline and provide guidance for contesting if they wish. Close the Case : Once resolved, close the case in E-Verify. How HR Technology Helps: HR tech systems can set reminders for case follow-ups, and many solutions offer automated notification systems that alert employees to TNCs directly, simplifying the process for both HR and employees. Additionally, systems often include dashboards that make tracking case statuses easier. Step 5: Managing and Auditing E-Verify Records Process Overview Maintaining compliance with E-Verify involves ongoing management and periodic audits. This includes ensuring that all cases are closed, TNCs are resolved, and records are retained as per legal requirements. Steps for Managing Records: Retain I-9 and E-Verify Records : Store all relevant records in a secure location, either physically or digitally. Conduct Regular Audits : Periodically review E-Verify compliance and documentation practices. Close Out Records for Former Employees : Manage inactive employee records per the organization’s policy and E-Verify retention guidelines. How HR Technology Helps: HR tech platforms offer secure storage solutions that automatically organize E-Verify and I-9 records, making audits more efficient. Many systems provide reporting tools to generate compliance reports, track verification timelines, and keep HR teams ahead of regulatory requirements. Navigating the E-Verify process can be complex, but HR tech significantly simplifies it by automating and securing each step, from registration to case management and auditing. By integrating E-Verify into your HR systems, you not only ensure compliance but also create a smoother onboarding experience for employees and a more efficient workflow for your HR team. Whether you’re onboarding a few hires or managing a large team, leveraging HR tech makes E-Verify a fast, reliable process for employment eligibility verification.
Why E-Verify use should be a priority for employers who value workplace integrity, want to bring ease and efficiency to the hiring process, and reduce their legal risks.
Navigate remote I-9 verifications and get expert insights, best practices and more in this guide.
Want more information?
STAY CONNECTED
Join our newsletter to learn more about Form I-9.