Important Trend in Corporate Immigration Compliance: DOJ Enforcing Anti-Discrimination Provisions of
A New Trend:
Department of Justice has been going after healthcare providers for alleged discrimination under Immgiration Reform and Control Act
Background/Why this is Happening:
The US Department of Homeland Security (DHS) and the US Department of Justice (DOJ) worked together in 2010 to investigate over 2,000 U.S. businesses for alleged failures to check identity and employment of workers under Immigration Control and Reform Act (IRCA). For all practical purposes, these investigations are based on allegations that companies are not doing enough, turning a blind eye to hiring unauthorized workers. The government has been aggressively seeking,
and in many cases, obtaining, criminal and civil penalties against companies and their management and executives. In 2010, businesses paid over $45 million dollars in penalties for IRCA-related violations. In addition, 195 executive and management were arrested and criminally charged for business-related immigration violations.
Going Too Far in Immigration Compliance Efforts?
The businesses are definitely paying attention. While some get immigration compliance right, many simply go too far. Employers are asking more questions when hiring or auditing their I-9 Employment Eligibility Forms. However, asking too many, or not the right kind of, questions, and requiring work-authorized foreign nationals or naturalized citizens to present more documents than needed under the law may constitute prohibited discrimination under IRCA.
Specifically, section 274B of the Immigration and Nationality Act, 8 U.S.C. 1324b, prohibits:
1. Citizenship status discrimination in hiring, firing, or recruitment or referral for a fee;
2. National origin discrimination in hiring, firing, or recruitment or referral for a fee;
3. Document abuse (unfair documentary practices during the employment eligibility verification, Form I-9, process; and
4. Retaliation or intimidation.
Examples of DOJ Investigations Against Healthcare Providers:
DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) may proceed without DHS in investigating employers for alleged immigration violations. OSC seeks money penalties, including fines and compensation to workers who allege discrimination under IRCA. In the past year, healthcare providers have become a notable target. Examples of investigations are below.
Catholic Healthcare West
Alleged Activity: According to the department’s findings, CHW required non-U.S. citizen and naturalized U.S. citizen new hires to present more work authorization documents than required by federal law, but permitted native born U.S. citizens to provide documents of their own choosing. Results: 257,000 in civil penalties + Backpay to workers alleging discrimination
Provider: U. of California, San Diego Medical Center
Alleged Activity: The Department of Justice independent investigation allegedly revealed that the medical center engaged in a pattern or practice of subjecting newly hired non-U.S. citizens to excessive demands for documents issued by the Department of Homeland Security in order to verify and re-verify their employment eligibility, but did not require U.S. citizens to show any specific documentation. Results: DOJ Lawsuit currently pending.
Alleged Activity: The Department of Justice’s investigation allegedly revealed that Generations Healthcare required all newly hired non-U.S. citizens and naturalized U.S. citizens at its St. Francis Pavilion facility to present specific and/or extra work authorization documents beyond those required by federal law to prove their status — a burden that was not placed on native- born U.S. citizens. Results: DOJ lawsuit currently pending.
American Academy of Pediatrics
Alleged Activity: PedJobs’, AAP’s employment posting website, allegedly permitted employment postings for doctors, nurses and other professionals impermissibly limited applications to U.S. citizens and certain visa holders, even though other work authorized immigrants should have been allowed to apply. Results: $22,000 in civil penalties.
Home Care Giver Services, Inc.
Alleged Activity: The Justice Department’s complaint alleges that the company discriminated against a U.S. citizen when it terminated her based on her national origin. According to the department’s findings, the company subjected the alleged victim to insults and derogatory statements about her accent and Hispanic heritage and eventually terminated her in January 2011 because of her national origin. The alleged victim was a U.S. Citizen and native of Columbia who spoke fluent English. Results: DOJ lawsuit currently pending.
What Shoud Healthcare Providers Do?
Review existing, or establish new, Corporate Immigration Compliance Plan, Policies and Procedures based on DHS/ICE Best Employment Practices, including among other items, annual internal audits of I-9 Employment Authorization Forms, and training of HR and other hiring personnel involved in administration of I-9 forms.
Mira Mdivani President, Corporate Immigration Compliance Institute