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The Department of Justice Office of Special Counsel (OSC) added some quivers to its bow in its fight to curtail unlawful hiring discrimination against immigrants in a proposed rule published Aug. 15 in the Federal Register.
The rule's proposed change of terminology from "documentation abuses" to "unfair documentary practices" is "very significant," said Kevin Lashus, an attorney with FisherBroyles in Austin, Texas. "This rule redefines 'intent.' " And the change, he said, should be reflected in employers' immigration policies.
The use of the word "abuses" suggests that there must be intent to harm for employers to face any liability. There's no such suggestion with documentary practices that are merely "unfair."
In the past, some employer practices were considered unfair but not abusive, which prevented Justice Department lawyers from moving forward on charges. "This frees them up" to take action, Lashus said.
The OSC, which will switch its name to the Immigrant and Employee Rights Section when the rule is finalized, will formally expand the prohibition on discrimination based on national origin or citizenship beyond the I-9 process to the E-Verify process, an expansion that the agency has espoused in the past but not set out in its regulations until now.
The Immigrant and Employee Rights Section "will be empowered by these proposed rules to scrutinize how employers seek, track and hire employees like never before," Lashus said. "The nation's immigration discussion during this campaign season is such a divisive and visceral one. These rules will only fuel the fire."
While intent to harm isn't required for there to be an unfair documentary practice, there still must be intent to treat someone differently, regardless of whether the treatment was to harm or help, noted Yova Borovska, an attorney with Buchanan, Ingersoll & Rooney in Tampa, Fla.
Borovska said that unlawful discrimination occurs when an employer intentionally treats a worker or potential hire differently because of that person's national origin or citizenship status. This includes asking a refugee to provide a specific document from the acceptable documents list in the I-9 form instructions, rather than letting the person present any acceptable document of his or her choosing—one from I-9 List A or, alternatively, a combination of two documents—one from List B and another from List C.
"Unfortunately, erring on the safe side and asking for more documents than necessary could potentially result in unfair documentary practices," Borovska cautioned. "It is crucial for employers to ensure that they are not 'overdocumenting' their I-9 forms, [for instance, by] requesting a permanent resident card and a Social Security card or [by] asking for specific documents without allowing employees to select acceptable documents of their choice, such as a permanent resident card, a U.S. passport or a DHS [Department of Homeland Security-]-issued document."
Front-to-Back Review of Policies
A complete review of policies for verifying employment eligibility might be needed because of the regulations, the Justice Department suggested.
"Employers may need to replace all references to 'documentation abuses' with 'unfair documentary practices' and to change the name for the enforcement agency," Borovska noted.
Mira Mdivani, an attorney with Mdivani Corporate Immigration Law Firm in Overland Park, Kan., said employers need to make sure their immigration compliance plans, policies and procedures cover their Immigration Reform and Control Act (IRCA) obligations. IRCA amended the Immigration and Nationality Act to require that employers verify that employees are authorized to work in the United States by using the I-9. Employers need to update their policies to include the unlawful discrimination language mandated by the proposed rule, she added.
"In light of these new rules, all employers should examine their hiring policies, which must absolutely include employment verification protocols, and they should do so with a perspective that OSC is monitoring activity from recruitment all the way through onboarding," Lashus said. Review shouldn't be limited to just the actions after an offer of employment. "Employers need to review policies or practices beginning with the job opportunity itself," he stated.
In addition, Lashus said, executive teams "will need to get more engaged in monitoring how a new hire came to be onboarded, not simply how the employee performs within the first 90 days."
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