Justice Department Proposes to Expand Employer Liability for Immigration-Related Discrimination Claims

United States

The Justice Department has proposed a regulation that seeks to enhance its ability to enforce federal immigration-related anti-discrimination laws, with significant potential impact to employers. If implemented, the rule would increase employers’ exposure to discrimination claims.

The rule would give the Justice Department up to five years from the time of an alleged violation to bring a complaint or conduct an investigation. Currently, it is limited to 180 or 210 days to bring a complaint or investigate one. The agency would have the authority to waive the 180-day time limit for an individual employee to file a discrimination charge against an employer. Furthermore, the proposed rule would give expanded investigative powers to the agency, both in terms of what information it could access and from whom it could obtain information.

Employers would be liable for discrimination if they treat employees differently based on immigration status, regardless of their reasons for the different treatment, and even where the employer does not take adverse action against those employees – provisions that appear inconsistent with federal employment discrimination statutes.

Next Steps for the Proposed Rule

The proposed regulation comes in the wake of a substantial increase in civil fines against employers who commit immigration-related offenses, including Form I-9 and E-Verify violations, the unlawful employment of foreign nationals, unfair immigration employment practices, and H-1B and H-2B program violations.

The Justice Department regulation is on a fast track and requires public comment by September 14, 2016. If your organization would like to submit feedback or you have questions about the proposed rule, please contact the immigration professional with whom you work at Fragomen or contact Patrick Shen, a partner in Fragomen’s Government Strategies and Compliance Group and who served as the Justice Department’s Special Counsel for Immigration-Related Unfair Employment Practices before joining the firm. This alert is for informational purposes only.

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