Justice Department Warns Employers of Form I-9 Discrimination

Employers should strengthen their Form I-9 documentary practices to avoid discrimination claims, a Justice Department official said on March 20.

The Form I-9, Employment Eligibility Verification, is used to verify whether workers are eligible under federal law to work in the United States. Employers may also use an online system, called E-Verify, to confirm individual’s eligibility.

Discrimination “can come up during hiring, firing, recruitment, and referral for a fee,” said Julia Heming Segal, special litigation counsel for the Justice Department’s Civil Rights Division.

A classic example of discrimination in the hiring process occurs when an employer advertises employment to “US citizens only,” she said. However, the law exempts employers “if citizen status is required by law, regulation, or government contract.” For example, she said, “to work at the Justice Department you must be a US citizen.”

Segal identified unfair documentary practices as “the most common [form of employment] discrimination” when speaking to employers at the American Payroll Association’s Capital Summit in Arlington, Virginia.

“Many people don’t know that this is illegal,” she said.

She described unfair documentary practices as “discrimination that can occur in the Form I-9 or E-Verify process.” She clarified, “this basically means treating people differently when you’re verifying that they’re authorized to work in the US.”

A common example of unfair documentary practices occurs when employers request specific documentation based on the applicant’s status. “Employers will say, ‘Oh, you’re a permanent resident? Show me your green card.’” Segal reminded employers that they must never “request, reject, or specify” I-9 documentation, regardless of the applicant’s status.

Employers should also never “reject a document that reasonably appears to be genuine and relates to the worker that presents them,” she said, adding that unfair documentary practices can be avoided by simply “allowing workers the right to choose” their preferred verification document, she said.

Form I-9 provides lists of acceptable documents in three sections. List A documents establish both identity and work authorization (e.g., a US passport). List B documents establish identity only (e.g., a driver’s license). List C documents establish employment authorization only (e.g., a Social Security card).

Segal emphasized, “Form I-9 is not designed to prove the worker’s specific status. The purpose is to verify the employee’s identity and their authorization to work, not to verify the employee’s particular immigration status.”

Segal also highlighted the division’s preference for mediation in the event of a discrimination claim. “We think it’s in everybody’s interest to try and resolve the issue.” Mediation “is a really great way to get issues resolved and get workers back to work,” she said.

“Everyone wants the worker back on the work floor,” she said, adding that, “it is not in anyone’s interest that the documents be rejected if they can be accepted.”

Segal reminded employers that these rules also apply to E-Verify. “Sometimes employers say, ‘I had to ask for a List A document because E-Verify told me to.’ This is not true.”

E-Verify may require different information, such as a Social Security number, but “[E-Verify] doesn’t require discrimination and doesn’t justify discrimination either,” she said.

She also reminded payroll professionals that if an applicant is missing a requisite Social Security number for E-Verify, the software allows for a delayed submission. “It’s a permissible approach, allowing workers to get to work right away,” she said.

Segal also spoke on the various issues that may arise from automatic extensions. “Be aware of multiple kinds of extensions that function in different ways,” she said. “Some documents might have an expiration [date] but could still be extended.”

Employers should pay close attention to the type of extension granted. “A permanent resident card extension can make the document List A or List C according to the extension,” she said.

When I-9 documentation is expired, workers are permitted to show employers notice of the documents extension and may even “show a federal register notice that a class [of documents] has been extended, not just their individual documents,” said Segal.

Segal encourages employers who have questions about Form I-9 documentation to contact the division’s hotline rather than “reject the document and have the worker know they’re being subjected to mistreatment and discrimination.”