Definition "discrimination"If you thought it would be safer to require every new hire to be an American citizen—think again. The U.S. Department of Justice (DOJ) has a new rule revising its prior regulations on Section 274B of the Immigration and Nationality Act (INA), which prohibits unfair immigration-related employment practices. This new rule, effective January 18, 2017, is intended to clarify the standards for determining whether a prohibited practice has occurred and updates the DOJ’s enforcement procedures.

First – A Little Background

Under Section 274B (8 U.S.C. § 1324b), employers may not do the following:

  • Discriminate on the basis of national origin against any individual who is authorized to work with respect to hiring and firing. This applies to employers with between 4 and 14 employees. (An employer with at least 15 employees is covered by Title VII rather than the INA.)
  • Discriminate on the basis of citizenship status against any “protected individual” who is authorized to work with respect to hiring and firing. “Protected individuals” include U.S. citizens, recent lawful permanent residents, temporary residents, asylees, and refugees. Lawful permanent residents who do not apply for U.S. citizenship within six months of eligibility lose their “protected” status. This applies to employers with 4 or more employees. However, discrimination on the basis of citizenship status is permissible if otherwise required to comply with a separate law, regulation, executive order, or government contract.
  • Engage in “unfair documentary practices” relating to verifying an employee’s work eligibility on Form I-9 (a/k/a “document abuse”). Specifically, employers may not (1) request that an individual present more or different documents than are required to establish work eligibility or (2) refuse to accept documents that reasonably appear to be genuine if done “for the purpose or with the intent of discriminating against” the individual on the basis of national origin or citizenship status.
  • Intimidate or retaliate against any person because that person files a charge alleging a violation, participates in the investigation of such a charge, or otherwise contests action that may constitute an unfair documentary practice or discrimination based on national origin or citizenship status.

Aggrieved individuals may file a charge against the employer with the DOJ’s Special Counsel for Immigration-Related Unfair Employment Practices (Special Counsel), whose office is responsible for enforcement. The charge must be filed within 180 days of the alleged unfair practice.

The Special Counsel’s office has 120 days to undertake an investigation and determine whether to file a complaint with the Office of Chief Administrative Hearing Officer (OCAHO). If the Special Counsel opts not to file a complaint, it must issue a notice to the charging party, who then has 90 days to file a private complaint with OCAHO.

The Special Counsel also may, on its own, initiate investigations of unfair immigration-related employment practices and file a complaint with OCAHO. All complaints – whether arising out of an individual charge or a Special Counsel-initiated investigation – are heard by an Administrative Law Judge (ALJ) within OCAHO, who can award back pay and assess civil penalties.

So What Does the New Rule Do?

According to the DOJ, the new rule revises the existing Section 274B regulations to “clarify the full extent of the prohibitions against unfair immigration-related employment practices and to eliminate ambiguities in the regulatory text.”

  • Defines “Discriminate.” Perhaps the most significant revision is the inclusion of new language defining the term “discriminate.” According to the DOJ, this language is intended to incorporate the “intent” requirement added to Section 274B in 1996. This new definition does make clear that an employer’s action does not constitute an unfair immigration-related practice unless that action is taken with the intent of treating persons differently because of their national origin or citizenship status.
  • Makes it Easier to Establish Intent. Unfortunately, however, the DOJ has also added language that may make it easier, in some situations, for an employee to establish the requisite discriminatory intent. The new rule now explicitly provides that intentional discrimination may exist “regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.”

This means that, if an employer treats an employee differently because of his citizenship status during the Form I-9 process, the employee may be able to establish a violation even if the different treatment was innocent or actually intended to help the employee satisfy the Form I-9 requirements. Indeed, in the summary accompanying the new rule, the DOJ noted that an employer might be guilty of an unfair documentary practice if the employer were to ask about an employee’s citizenship or immigration status and then suggest specific documentation the employee might provide based on his response.

  • Clarifies and Revises the Procedures for Filing and Processing Charges. The new rule also makes several changes regarding the ways in which charges may be filed with the Special Counsel, how those charges are to be processed, and when and how the Special Counsel may file complaints with OCAHO.
  • Changes the Timing for Special Counsel to File Complaints. The most significant change to the INA enforcement processes relates to the timing for when the Special Counsel must file a complaint with OCAHO. An individual must file a complaint within 90 days of the Special Counsel’s notice that it is not filing a complaint. Under the new rule, it’s clear that the Special Counsel is not bound by that same 90- day period. Rather, the Special Counsel may continue to investigate any timely-filed charge after providing such notice and may file a complaint based on that charge at any subsequent time. The new rule also provides that the Special Counsel may file a complaint based on a Special Counsel-initiated investigation at any time so long as that investigation was opened within 180 days of the alleged practice.

And This Means What for You?

With this new rule, employers could see an uptick in these claims. Employers must be careful to avoid any conduct that might be considered discriminatory under the amended regulations and should conduct their Form I-9 processes in a manner that is consistent for all employees, regardless of citizenship or immigration status.

Remember – it’s important to make sure your employees are authorized to work, but it’s also important to do that in a way that does not lead to claims of discrimination and document abuse.