The Balance Between Too Much and Not Enough

The Balance Between Too Much and Not Enough

May 24, 2011 | Print this page
Followers of our blog have been reminded, some might even say ad nauseum, to take employment eligibility verification and the “I-9 process” very seriously. As Homeland Security Secretary Janet Napolitano reported, her department has audited more than 3,200 employers, debarred 225 companies and individuals from federal contracts, and imposed approximately $50 million in financial sanctions. And that’s just through September 2010. More to the point, these figures are higher than the total amounts of similar actions imposed during the entire eight years of the Bush Administration.

Now for the other half of the story. Employers who go too far in trying to verify employment eligibility can get dinged for discrimination. Case in point: Last week, the Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices (OSC) announced a settlement with the Maricopa County Community College District in Arizona that cost the district $45,760 in civil penalties and $22,123 in back pay. The district also agreed to certain remedial steps to train its human resource staff on immigration-related employment discrimination.

Specifically, OSC alleged that the district, consisting of ten community colleges, routinely demanded more documents from non-U.S. citizens when completing their I-9 forms than the I-9 regulations actually required. OSC deemed this practice discriminatory because it treated citizens and non-citizens unequally. It was irrelevant that the district never acted out of any discriminatory animus toward any particular nationality or ethnicity. What was relevant was that this practice affected 247 non-citizen employees and continued for about a year even after OSC launched its inquiry.

Lest you think this was an anomaly, let me remind you of a nearly identical case that was brought against Catholic Healthcare West, a San Francisco-based medical provider for the neediest in our society. OSC settled its case against Catholic Healthcare for a record $257,000 last October.

So what is the take-away from all this? First, it is increasingly clear that training as it relates to immigration discrimination is as critical as other aspects of equal employment opportunity training. If the government shows no mercy when it comes to a church-run hospital or a public institution of higher education, then it certainly would not hesitate to go after members of the business community with all its might.

The other key point to understand is one of balance. Employers may understandably feel like they are caught between opposing forces–damned if they are too vigilant and damned if they are not vigilant enough. Recognizing that a tension does exist in the law, employers must learn to strike a balance by adhering to regulations governing both sides of the issue. Demand strict compliance with the I-9 regulations, but do not go beyond them. This is one area where an abundance of caution only leads to more, not fewer, liabilities.