Careful What You Ask For: Major U.S. Airline Fined for I-9 Over-Documentation

Immigration related compliance is an increasing concern for U.S. employers, who are often caught between two federal agencies with opposing interests: ensuring that all workers are authorized for employment in the U.S. and protecting those who are lawfully here from discrimination.

Careful what you ask for

The Immigration Reform and Control Act of 1986 (“IRCA”) requires all employers to fill out an I-9 form for all employees hired regardless of their immigration status. Employers must accept verification documents if they appear “reasonable genuine” and related to the person presenting the documents. However some employers who might be fearful of being penalized for hiring undocumented workers may intensely over-scrutinize documents of some workers who look or sound “foreign”. The anti-discrimination provision of the Immigration and Nationality Act law bars employers from demanding more or different identification documents from employees based on workers’ immigration status and prohibits employers from limiting those workers’ choice of documents.

The I-9 regulations state that the employers can accept only a List A or a List B and List C documents. But not both.  If an employer requests (or employee volunteers) more documents than necessary, over-documentation occurs. Employers who do not want to risk claims of discrimination should work to immediately remedy non-compliant I-9 forms and should engage in a company wide I-9 training for all hiring professionals.

Recent enforcement and fines

In the most recent enforcement decision, on September 23, 2014, the Department of Justice announced a six-figure settlement agreement with United Continental Holdings Inc. based on allegations that divisions of the company previously operating as Continental Airlines discriminated against non-citizens during the I-9 process. According to the DOJ’s press release, the Continental Airlines had a practice of requiring lawful permanent resident employees to provide more documentation than is legally required and to complete additional I-9 forms after hire. Continental apparently did not, however, have this same requirement for U.S. citizen employees (and therefore the claim of discrimination). Under the terms of the settlement agreement, United Continental has agreed to pay $215,000 to resolve the allegations, create a $55,000 back pay fund to compensate individuals who may have lost wages due to the company’s practices, and undergo training on I-9 related anti-discrimination.

Conclusion

Employers must be aware of the increased government enforcement in this area and should act to if they do not want to find themselves the subject of tomorrow’s headlines. They should provide training to all employees who are involved in the hiring process to ensure that prohibited acts of discrimination do not occur. Capitol Immigration Law Group routinely assists employers with creating an organization-wide non-discrimination policy and providing training for all hiring professionals on I-9 processes. If our office can be of any help, please feel free to contact us.