A California farm labor contractor has found itself on the wrong side of history after settling with the Department of Justice to pay the largest-ever settlement to resolve a discrimination claim under the Immigration and Nationality Act.
Luis Esparza Services, Inc. (“LES”) reached an agreement with the DOJ following allegations that the company discriminated against individuals based on citizenship. The INA states that employers cannot treat people differently based on their citizenship status or national origin. During the hiring process, U.S. citizens, permanent residents, temporary residents, refugees, and asylees must all be treated the same, according to the DOJ. There are some exceptions to this rule, however. For instance, lawful permanent residents who do not apply for naturalization within six months of eligibility, and work-authorized individuals on employment visas are not protected from citizenship status discrimination. Additionally, an employer may restrict hiring to U.S. citizens only when required to do so by law, regulation, executive order, or government contract.
"Employers cannot treat people differently based on their citizenship status."
LES settlement with DOJ largest in history for hiring discrimination claims
The DOJ alleged that LES asked work-authorized non-U.S. citizens to provide documents from the Department of Homeland Security as a requirement for employment. The company apparently did not request the same of U.S. citizens. In violation of the INA, the burden on non-U.S. citizens was greater than that placed on U.S. citizens to prove employment eligibility. The terms of the settlement agreement call for LES to pay $320,000 in civil penalties, and to compensate an individual who lost wages as a result of the company's hiring practices. The contractor will be required to cover 11 days’ worth of pay (plus interest) that the person missed out on due to LES' work authorization verification procedures, according to Law360.
In addition to the monetary requirements in the settlement agreement, LES will be required to have employees receive guidance on the anti-discrimination provision of the INA, change its employment eligibility authorization procedures, and have those same processes monitored for three years. The company agreed to post English and Spanish language versions of the DOJ's "If You Have The Right To Work" poster, and distribute copies of the same to its applicants.
An employer's hiring procedures should not change due to an individual's citizenship status.
Other discrimination settlements in 2015
This wasn't the first time this year, or this month,that the DOJ reached a settlement with a company following allegations of discrimination under the INA. The Data Entry Company agreed to settle with the DOJ after a claim that the subcontractor twice removed an individual from its applicant pool because she held dual citizenship, according to the department. The termination, due to her citizenship status, was also a violation of the INA, and the company agreed to pay $750 in civil penalties to the U.S. Additionally, The Data Entry Company was required to pay $7,007 in lost wages to the individual.
In March, a different company agreed to a settlement with the DOJ after claims that it breached the anti-discrimination provision of the INA. The department announced on March 9 that it had settled with Hilton Worldwide to resolve claims that the hotel chain discriminated against a foreign-born worker during the hiring process. The company allegedly discriminated against an asylee by rejecting his Social Security card when the hotel was reverifying his authorization to work in the U.S. Under the settlement, Hilton was required to pay $550 in civil penalties and provide $12,600 to the individual for lost wages.
Discrimination claims have been a recurring issue through the first five months of 2015, and the government set a new standard for what can happen to a company that breaches the anti-discrimination portion of the INA with the $320,000 penalty levied against LES. Employers must ensure that hiring practices are the same for everyone, regardless of their citizen status. When it comes time to verify work eligibility, a best practice is to use an outlined set of procedures each time an applicant is hired; this helps ensure that the process remains consistent and is followed without change. Distributing step-by-step employment verification procedures within the company can help ensure that employers don't find themselves in situations like LES.
A web-based Form I-9 and E-Verify solution like I-9 Advantage™ helps employers to utilize a standardized process, and may have helped organizations like LES avoid discrimination.