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Corporate Compliance

by: Justin Burton

August 23, 2011

BY:  Tejas Shah

The Dept. of Justice Civil Rights Division’s Office of Special Counsel for Immigration Related Unfair Employment Practices today announced a settlement agreement with Farmland Foods, Inc., to resolve allegations that the company had engaged in restrictive and discriminatory hiring practices against foreign nationals and naturalized U.S. citizens. In addition to modifying its hiring practices, engaging in widespread training of human resources personnel, and monitoring and reporting under the terms of the settlement, Farmland Foods also agreed to pay $290,400 in civil penalties.

The Immigration and Nationality Act imposes a responsibility on U.S. employers through the I-9 verification process to ensure that every employee is authorized to work in the United States. Employers are required to verify both the identity and work authorization of employees while completing I-9 forms by reviewing specific documents provided by employees. Counterbalancing this responsibility, employers cannot impose different sets of requirements on employees based on their national origin or citizenship. Requiring all or even a subset of employees to produce only specific sets of documents, asking for more or different documents than required under the INA, or refusing to accept documents which are genuine on their face with the intent to discriminate represent restrictive hiring and unfair immigration-related employment practices under the Act.

Employers with 3 employees or less are excluded from the scope of the Act’s provisions, and in certain instances, the provisions of Title VII may apply instead of the Immigration and Nationality Act. Any hiring practices by U.S. employers are covered by the scope of the Act, and the range of sanctions for violations under the Act is extensive. Employers will not only be required to cease and desist from wrongful practices, they could also be required to retain records for all employees for 3 years, provide backpay, frontpay, and rehire employees who were discriminated against, and as this example shows, face extensive civil penalties. In the case of federal contractors and subcontractors, violations of these provisions could lead to debarment from future contracts.

While enforcement of these provisions has occasionally been sporadic, this settlement signifies that the Department of Justice is serious about holding employers responsible for engaging in immigration-related employment violations. The mandate of the INA to maintain robust employment eligibility verification mechanisms without engaging in discriminatory practices is a responsibility that an employer violates at its own peril.

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