The Department of Justice Office of Special Counsel is casting a wider net when it comes to Immigration and Nationality Act violations during the Form I-9 process.
The department recently changed language in its immigration and nationality guidelines on the Form I-9. The seemingly slight alteration will have a significant effect on how the OSC approaches INA violation investigations and settlements. Hopes are that the change will help the government combat hiring discrimination. Previously, the INA contained a provision that barred employers from "document abuse," or placing an unnecessary burden on new hires, with intent, by asking for specific proof of work eligibility. For example, if an employer requested a green card from a lawful permanent resident, that would be considered document abuse.
Government casting a wider net in hiring discrimination
The words "document abuse" were recently replaced, though. And the new language will help the DOJ cast a wider net in its work to seek out and punish instances of hiring discrimination. The altered wording will eliminate the need for intent, essentially. This will give the government more leeway to charge employers with discrimination - even if they didn't intentionally place the necessary burden on new hires due to citizenship status.
Document abuse will become "unfair documentary practices." If hiring practices were considered "unfair" in the past, but not carried out with intent to harm, then the government often found its abilities to pursue charges or settlements obstructed. However, now the DOJ will have the authority to pursue many more cases. The government's expanded purview in regard to hiring discrimination comes on the heels of raised penalties for certain hiring violations. In addition, the OSC will change its name to the Immigrant and Employee Rights Section. This series of changes would seem to enforce the notion that the DOJ is set to work just as hard to punish hiring violations through the rest of 2016 and into next year.
New language will require careful consideration
The switch from document abuse to unfair documentary practices is something that employers should pay careful attention to. Any sort of hint that a new hire is being treated differently from other employees could be considered unfair, and lead to an investigation. And that scrutiny could end with a fine. Hiring professionals should avoid asking for any specific documents when completing the Form I-9. Instead, they should provide new hires with a guide to List A, B and C documents and let the employees choose which they bring. As long as the papers add up to sufficient proof of employment eligibility, the person should be considered authorized to work in the U.S.
With the change in language, INA compliance will grow even more important for employers. It is now more necessary than ever to ensure there's no citizenship status discrimination in the hiring process. Even a mistake can lead to large penalties now that discrimination doesn't require intent. Implement standardized hiring procedures to ensure the process is the same for everyone.
Contact I-9 Advantage and discover how web-based Form I-9 compliance solutions offered by I-9 Advantage can help employers to avoid discriminatory practices.