Let’s walk through a common scenario employers might face during the onboarding process for a newly hired employee:
A recently hired employee that is a non-U.S. citizen completes Section 1 of Form I-9, and then provides the employer with genuine and acceptable documentation for Section 2 of the form. However, the employer is unsure if the documentation is enough to validate the employee’s authorization to work in the United States. The employer has already accepted the employee’s documentation, but is considering requesting additional proof of work authorization, just to be safe.
Ask yourself: What would you do in this situation?
If your answer is different than “stop and refer to the Lists of Acceptable Documents to ensure the documents provided satisfy the document requirements for the Form I-9 before requesting additional documentation”, you might be at risk of engaging in discriminatory I-9 practices.
In our latest blog post, we dissected the recent IER discrimination settlement with Destin Wings Inc., dba Destin Hooters, where we explained how employers can save thousands of dollars and significant time by familiarizing themselves with the Lists of Acceptable Documents, the Anti-Discrimination Notice, and understanding their obligations and limits when accepting documentation for Form I-9.
There was another recent I-9 discrimination settlement that is very similar to the case we previously discussed –the settlement reached between the IER and Treacy Enterprises, the owner and operator of several Domino’s Pizza franchises. Treacy Enterprises’ mistake was slightly different than Destin Hooters’, but still resulted in unfortunate consequences. Let’s take a closer look.
What Went Wrong:
Treacy Enterprises required a lawful permanent resident worker to provide the I-9 Administrator with additional and unnecessary documentation to prove his permission to work, instead of just accepting the valid documentation that he had already provided. They also required the worker to prove his citizenship status by providing them with his Permanent Resident Card (green card). These actions are in violation of the Immigration and Nationality Act.
The Anti-Discrimination Notice at the top of the latest I-9 states that:
All employees can choose which acceptable documentation to present for Form I-9; and
Employers cannot ask employees for documentation to verify information in Section 1; and
Employers cannot specify which acceptable documentation employees must present for Section 2.
By requiring the lawful permanent resident worker to provide specific, additional documentation after he had supplied them with valid documentation from the Lists of Acceptable Documents that satisfied Form I-9 requirements, Treacy Enterprises violated federal law and discriminated against the employee.
What the I-9 Administrator likely thought was due diligence, turned out to be illegal.
This resulted in the Domino’s Pizza franchisee agreeing to pay a civil penalty to the government, train its human resources staff on the INA’s requirements, revise its employment policies, and undergo compliance monitoring, similar to what was required of Destin Wings.
Don’t Let This Be You
Overdocumentation is one of the Top 10 mistakes employers can make when completing the Form I-9. And as we’ve seen, it can lead to costly, inconvenient, and time-consuming consequences.
In order to protect yourself and your company:
Ensure your I-9 administrators are familiar with the Lists of Acceptable Documents and Anti-Discrimination Notice;
Ensure your I-9 Administrators understand what overdocumentation is and how to avoid it; and
Train your I-9 Administrators with us!
Hadley Bybee
Mdivani Business Immigration Lawyer
