Trends in Antidiscrimination Investigations and Related Changes to Employment Eligibility Verification Rules

The Immigrant and Employee Rights Section (IER) of the Department of Justice (DOJ), which is tasked with enforcing antidiscrimination laws, has steadily increased the number of investigations of employers over the past several years. And, as a result of the COVID-19 pandemic, employers are particularly vulnerable to investigations due to gaps in their employment practices created through remote work. As such, employers must keep antidiscrimination practices top-of-mind as they craft recruiting strategies and onboarding protocols and manage right-to-work processes for their workforces.

Additionally, the Department of Homeland Security (DHS) has published a Notice of Proposed Rulemaking (NPRM), addressing concerns arising from the sudden burden placed on employers by remote work during the pandemic. The proposed rule would provide alternatives to strict in-person document review requirements and implement limitations on employers seeking to use those alternatives.

On September 14, 2022, Quarles & Brady presented a webinar on enforcement trends our firm is seeing from the IER. The presentation included a discussion of the relevant antidiscrimination laws and regulations affecting employers’ hiring and recruiting practices, current trends in IER investigations, penalties for discrimination violations, and proactive tips for avoiding and responding to investigations. The following provides an overview of this content as well as an overview of the new employment authorization rules on the horizon.

Relevant Antidiscrimination Laws and Regulations

The Immigration and Nationality Act (INA) at 8 U.S.C. § 1324b prohibits discrimination based on national origin or citizenship in hiring and recruiting. Specifically, the INA prohibits employers from discriminating against citizens or nationals of the United States, legal permanent residents, refugees, and asylees. The INA further prohibits unfair documentary practices during the employment eligibility verification process.

The IER enforces these provisions of the INA. The IER is authorized to investigate charges of discrimination brought by individuals or initiate independent investigations. The IER initiates investigations when it has reason to believe that an entity has previously engaged in or continues to engage in unfair immigration-related employment practices, including by posting discriminatory job advertisements, participating in discriminatory hiring practices, or engaging in unfair documentary practices relating to employment authorization (i.e., I-9 and E-Verify processes).

Once it initiates an investigation, the IER has discretion to close the investigation without any action. It may also issue letters of resolution to conclude an independent investigation where no victims were found and an employer corrected its practices. The IER also may issue letters of resolution to conclude an investigation prompted by an individual’s discrimination charges—where an employer has voluntarily resolved those charges with the individual.

However, if it determines it has reasonable cause to believe an employer engaged in unfair immigration-related practices, the IER may notify the employer and enter into a settlement agreement with the employer resolving the matter prior to filing a complaint with the Office of the Chief Administrative Hearing Officer (OCAHO). In addition to monetary penalties, lost wages/backpay for aggrieved parties, and/or attorneys’ fees, the settlement agreement may contain clauses related to mandatory trainings, modification of recruitment procedures, or any other terms to which the parties agree. If no settlement is reached, the IER may file a complaint with OCAHO seeking civil penalties and other remedies.

Trends in IER Enforcement

Under the prior presidential administration, the IER primarily prosecuted employers who posted job advertisements expressing a preference for non-U.S. citizens. In February 2017, the IER launched the “Protecting U.S. Workers Initiative” aimed at targeting, investigating, and bringing enforcement actions against companies that discriminated against U.S. workers in favor of foreign nationals. Significantly, this initiative became the impetus for numerous settlement agreements with employers who posted job advertisements specifying a preference for applicants with temporary work visas. As a result, employers paid over one million dollars in backpay to affected U.S. workers and civil penalties to the United States. By contrast, during that time, the IER levied small or no penalties for preferences for U.S. workers.

This initiative was consistent with other enforcement actions that the prior presidential administration conducted to target and penalize employers who hired unauthorized workers. Those enforcement actions included both announced and unannounced raids by Immigration and Customs Enforcement (ICE) of employer worksites to arrest unauthorized workers and investigate and/or prosecute companies that were perceived as turning a blind eye to or knowingly employing unauthorized workers.

While the IER continued to prosecute employers who discriminated against U.S. workers in favor of temporary visa holders during the first year of the current presidential administration, that trend has shifted recently. Today, the IER is increasing its prosecution efforts on companies that have posted job advertisements requiring applicants to be U.S. citizens. This shift focuses on employers discriminating against other classes of people, including lawful permanent residents, asylees, refugees, and/or foreign workers—rather than U.S. workers.

Between June 23, 2022, and July 1, 2022, the IER announced that it signed eighteen settlement agreements with employers relating to discriminatory job advertisements. Seventeen of these settlements involved job advertisements that required applicants to be U.S. citizens. Seven of the settlement agreements related to only a single job advertisement. IER’s focus could not be more clear.

Practical Guidance for Employers

The key takeaway to protect your company: step back and review your recruiting and hiring processes. Implement policies and procedures that prohibit discrimination based on citizenship status or national origin. Some best practices include:

• Ensuring that job advertisements do not specify or require particular citizenship and/or visa status;
• Providing training materials to all employees and new hires involved in posting job advertisements related to avoiding discrimination in recruitment, referring, hiring, and onboarding candidates;
• Screening all advertisements posted by contractor recruiters;
• Providing all new hires with the List of Acceptable Documents for the I-9 process;
• Prohibiting language that requires or demands specific documents be used for Form I-9 completion;
• Providing continual I-9 guidance and training to human resources staff;
• Seeking the advice of legal counsel if your company receives a notice of an investigation by IER or ICE;
• Swiftly remediating any identified issue during investigations and develop a plan for future compliance;
• Demonstrating a commitment to compliance and willingness to cooperate with investigatory processes; and
• Reviewing comparator information that describes how IER has resolved similar issues in the past.

New Rules for I-9 Employment Authorization

In addition to this practical guidance, employers should monitor current changes to I-9 employment verification requirements the government is considering.

Specifically, § 1324a of the INA and its implementing regulations require employers to verify their U.S. employees’ identity and employment authorization by completing Form I-9 within 3 days of an employee’s start date. When completing this form, employers must physically inspect documents that verify an employee’s identity and U.S. employment authorization.

In March 2020, DHS announced that they would temporarily defer physical examination requirements for employers completing the Form I-9 due to the COVID-19 pandemic. Under this guidance, employers were permitted to inspect Form I-9 documents remotely though video, email, and fax. This policy only remains in effect until October 31, 2022. Because the temporary policy is sunsetting, DHS is now considering adopting a permanent rule allowing for more flexible inspection of I-9 documents because remote work is a more prevalent, permanent fixture of the workplace.

Specifically, in August 2022, DHS issued a Notice of Proposed Rulemaking that would amend the relevant regulations to give the DHS Secretary the authority to implement alternatives to physical examination of identity and employment authorization documents. The proposed rule also mandates that employers must follow modified procedures when completing the Form I-9 for new hires, rehires, and those requiring reverification of their time-limited work authorization. Those procedures must “offer an equivalent level of security” or be employed to address a public health emergency. While no alternate procedures were specified, DHS suggested making permanent the flexibilities implemented during the COVID-19 pandemic. In addition, DHS may update requirements for the retention of copies of identity and employment verification documents. The rule also proposes revision to the Form I-9 to provide space for employers to indicate where they used alternative procedures for inspection.

DHS has indicated that it may limit eligibility to participate in the alternate inspection program. Some of the restrictions DHS is considering include:

1. A requirement for participating employers to complete a thirty-to-sixty-minute online training on the detection of fraudulent documents and antidiscrimination;
2. Limiting participating employers to those who are enrolled in E-Verify; and
3. Restricting certain employers from participation who have been subject to fines, settlements, or convictions related to employment eligibility practices.

Ultimately, when questions arise regarding any employment practices governed by the INA’s antidiscrimination and employment verification provisions, reach out to legal counsel to ensure compliance and mitigate potential investigations or adverse findings.

Quarles & Brady Law Clerk Nicholas Lowrey is a contributing author.

For more information on IER investigations or employment verification compliance, please contact your Quarles & Brady attorney or:

• Timothy D'Arduini: (202) 780-2641 / timothy.darduini@quarles.com
• Amanda Collins: (414) 277-3083 / amanda.collins@quarles.com
• Caitlin Barden: (312) 715-5136 / caitlin.barden@quarles.com