Are Your I-9 Practices Discriminatory?
How Familiarity with the I-9 Anti-Discrimination Notice and Lists of Acceptable Documents Can Save You Time and Money
When completing the Form I-9 for new hires, employers may tend to focus solely on ensuring accurate information has been input into the required fields in Sections 1 and 2. However, employers should not graze over the Anti-Discrimination Notice at the top of the I-9 or the corresponding Lists of Acceptable Documents.
Employers that are familiar with 1) the documents that employees can present for the I-9 and 2) the employer’s obligation to not treat employees differently based on their citizenship, immigration status, or national origin can potentially save their companies both significant time and money.
1. The Lists of Acceptable Documents
The Form I-9 contains a list of acceptable documents that can be used to establish a worker’s identity and work authorization. Employees may choose to present one (1) document from List A (or a combination of documents that must be presented together to be considered acceptable List A documentation), or two (2) documents from List B and List C. In certain cases, an employee may also present an acceptable receipt for List A, B, or C documents.
Most importantly, it is up to the employee to choose which document(s) from these lists to present.
2. The Anti-Discrimination Notice
At the top of the I-9, the Anti-Discrimination Notice prohibits several actions on behalf of employers. To comply:
Employers cannot ask employees for documentation to verify the information the employee input into Section 1; and
Employers cannot specify which documents employees may present for Section 2 or Supplement B, Reverification and Rehire
Failure to adhere to these requirements may be illegal, as illustrated in the case below.
Case Example of Discriminatory I-9 Practices and Consequences: Hooters
In August of last year, the Immigrant and Employee Rights Section (IER) initiated an investigation into Destin Wings, Inc. dba Hooters of Destin based on charges of discriminatory practices when completing form I-9.
The sports bar was charged with committing unfair documentary practices based on citizenship and was fined a total of $1,886 in civil penalties to the government and backpay to the affected employee. While this may seem like a small fine, the settlement also required strict steps for maintaining compliance, which cost the company plenty time and resources.
The company was required to:
Train all of its new employees on I-9 practices;
Update their compliance and discrimination policies for the IER’s review; and
Provide all of their I-9s to the IER every six months for audit.
Let’s Talk About What Went Wrong:
Hooters was found to be discriminatory when an I-9 administrator refused to accept a non-U.S. citizen’s valid documentation and insisted on additional documentation. Although this act of discrimination may have been unintentional, employers must always allow new hires to provide any acceptable documentation of their choice from the lists of acceptable documents page. Employers cannot reject acceptable documentation unless it does not reasonably appear to be genuine.
How You Can Avoid Hooters’ Mistake
I-9 Administrators who are familiar with the lists of acceptable documents and their obligations when accepting relevant documentation can save their company thousands of dollars by avoiding government fines and strict, government-mandated compliance policies. You should:
Make sure that all I-9 admins are familiar with the Lists of Acceptable Documents;
Make the instructions for Form I-9 and Lists of Acceptable Documents available to the employee when completing the I-9 and requesting documentation;
Utilize the same language when requesting Section 2 documents from all new hires, e.g. “Please bring a document from List A, or a combination of a List B document and a List C document to complete the I-9”;
Only give examples of documents to provide from each list when requested; and
Train your I-9 team with us!
Compliance training can be a stressful experience when consequently forced to do so under the government’s microscope. Training your team before it becomes a problem makes for less stress related to immigration and employment compliance.
Mdivani Business Immigration Lawyer