General counsel are responsible for helping their companies balance countervailing mandates under immigration law: verifying employment eligibility while not discriminating unlawfully. With the recent implementation of the Deferred Action for Childhood Arrivals (DACA) program, which gives work authorization to those who establish that they were in the United States without authorization, GCs are sure to face implementation questions from managers. This article provides guidance on handling both responsibilities.
Employers must verify the employment eligibility of every new employee hired after Nov. 6, 1986, using Form I-9. Violations of this law can trigger potentially large civil fines — and even criminal penalties and injunctions for pattern or practice violations. Liability also can arise from the failure to complete and retain I-9 forms properly (referred to as “paperwork” violations).
To avoid discrimination against applicants based on a perception that they look or sound foreign, the Immigration Reform and Control Act of 1986 (IRCA) requires that the I-9 verification procedure happen after hiring, and it incorporates provisions against discrimination based on citizenship status or national origin.
The Immigration and Nationality Act of 1986, 8 U.S.C. §1324b, contains an anti-discrimination provision, §274B, prohibiting: citizenship status discrimination in hiring, firing, or recruitment or referral for a fee; national origin discrimination in hiring, firing, or recruitment or referral for a fee; document abuse (unfair documentary practices during the employment eligibility verification process, which occurs via Form I-9); and retaliation or intimidation.
U.S. citizens, lawful permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. The national origin provisions prohibit employers from treating individuals differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding “foreign.”
The unfair documentary practices provision relates to verifying the employment eligibility of employees. Under this provision, employers may not request more or different documents than are required to verify employment eligibility, reject reasonably genuine-looking documents, or specify certain documents over others with the purpose or intent of discriminating on the basis of citizenship status or national origin.
So, employers must balance these two countervailing requirements. If they fail in their I-9 compliance efforts, the U.S. Department of Homeland Security might institute civil and criminal sanctions against them. Alternatively, if they go too far to ensure work authorization, the U.S. Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), might pursue significant civil sanctions.
Also, general counsel should make corporate leaders aware of the link between workplace compliance liability and corporate disclosure obligations related to the Form I-9. More and more, companies are forced to put shareholders and potential investors on notice of I-9 compliance deficiencies in U.S. Securities and Exchange Commission filings.
General counsel may face questions regarding the intersection of DACA and existing law in a variety of ways.
First, what should a manager do if a current employee specifically asks for the employer’s help in applying for the DACA benefit? In this case, the employer might conclude that the employee currently is unauthorized to work and terminate him or her. However, in some cases the employee might have lawful status or work authorization via some other path. The legal department should educate managers to elevate all such cases to legal counsel for review before taking an employment action.
Second, what should a manager do if an employee asks for a letter confirming proof of employment for use in a DACA application? This scenario differs from an employee asking for a proof of employment letter for an unspecified purpose, which would not present an employment authorization issue. However, if the employee specifies that the purpose of the letter would be for their DACA application, the approach in the first situation applies.
A third fact pattern involves an employee who has been working with a company and presents work authorization obtained through DACA. If the employee was dishonest in the hiring process (i.e., gave false name, date of birth or Social Security number or was not authorized to work at the time) and the company’s honesty policy is to terminate such individuals, then the company likely will have to consider terminating the employee, even though he or she has proof of work authorization now.
What if the company doesn’t want to lose the worker? The legal department can consider an alternative possibility: Terminate the employee and rehire him or her. This is acceptable as long as the company does it uniformly and this decision does not represent disparate treatment to the detriment of others terminated under the honesty policy for other types of violations. In the rehire scenario, the employer would have to complete a new I-9 and use the DACA employment authorization card.
Another potential encounter would involve a new hire who presents work authorization obtained under DACA that is valid for only two years of employment. DACA is an executive branch creation, which means that the current administration must order renewal of the benefit every two years. Some employers prefer not to employ someone who may not be eligible for employment beyond the two year period without the employer’s sponsorship for some other form of work authorization.
Employers are permitted to ask job applicants whether, now or in the future, they will require sponsorship for an immigration benefit. Employers can take into account the temporary nature of the work authorization when deciding among candidates as long as they do not use the temporary nature of the individual’s work authorization as a pretext for discrimination on the basis of national origin.
With an estimated 940,000 eligible to apply for this authorization, GCs should be prepared to address one or more of the possible scenarios in their companies’ workforces.