Just this past June, the Justice Department announced that it had reached an agreement with Macy’s. The retail giant had been accused of conducting unfair documentary procedures during employee re-verification. While the Justice Department did not specify what the procedures were, it did say that Macy’s employees suffered economic harm due to lost work and seniority. Macy’s paid $175,000 in civil penalties, created a $100,000 fund to recoup lost back pay for employees, and will be monitored by OCS (Office of Special Counsel) for the next two years. While this notable outcome may seem singular, it would be a mistake for any employers to believe themselves immune.
Nearly all employers in the United States are familiar-or should be–with the I-9, as it is required under most circumstances. However, recent changes have made this “harmless” form into a trap for the unwary or careless. Recently, the Office of Special Counsel for Immigration-Related Unfair Practices (OCS) and the National Labor Relations Board (NLRB) agreed to combine their resources to catch employers who discriminate on the basis of national origin, citizenship or immigration status. This agreement is called the Memorandum of Understanding (MOU) and can be found here: http://www.justice.gov/opa/pr/2013/July/13-crt-762.html
This sharing of information leaves employers much more vulnerable to potential sanctions. Either the OSC or NLRB can refer an I-9 to an appropriate agency if either believes that discriminatory practices have taken place, and may contact the aggrieved party. The key word is ‘either’, as under the MOU, the NLRB will act as the agent for OSC for the purpose of accepting charges for OCS. This is important in figuring out when time beings to toll, so practitioners can know what the time limit for filing charges is. Naturally, the MOU also includes an agreement between OSC and NLRB for the sharing of information. All employers must be more cautious than ever, as what can be deemed a discriminatory practice may not necessarily be malicious or even intentional. Sometimes employers, especially when using the electronic I-9, will request certain documents for the purpose of conformity. Actions such as this, done without any discriminatory intent, can still lead to allegations of violations and potentially, penalties, as seen above.
Increased exposure, of course, begs the question: what can an employer do to protect himself? One course of action to consider and discuss with an employment law attorney is never to tell an employee what documents to bring for the Form I-9, or insist which documents listed can be chosen from. It might be better to provide each and every employee with the instructions for Form I-9, which include which documents are acceptable. Let your employees choose what to furnish, which will go a long way in avoiding any charges. It is also good practice to allow employees to present as many documents or combination of documents as they wish, as long as they are acceptable by law. And finally remember that the above advice applies to physical Form I-9s, electronic forms and most importantly, re-verification.