A Massachusetts staffing agency has reached a settlement with the U.S. Department of Justice, Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), resolving allegations that it violated federal law by discriminating against work-authorized non-citizens during the E-Verify process.

E-Verify is an Internet-based system that allows employers to confirm a new hire’s employment eligibility by comparing information from the employee’s Form I-9 with U.S. Department of Homeland Security and U.S. Social Security Administration records.  Federal law prohibits employers from requiring that employees provide specific or unnecessary information or documents in connection with the I-9 or E-Verify process with the purpose or intent of discriminating on the basis of national origin or citizenship status.  Similarly, employers are prohibited from treating individuals differently because of their national origin or because they are, or are not, U.S. citizens, except as required to comply with the law or a government contract.  The DOJ claimed the staffing agency required work-authorized non-citizen employees, but not citizen employees, to produce specific or unnecessary documents during the E-Verify process. 

As part of the settlement, the staffing agency is now obligated to provide back pay to the affected employees who suffered lost wages, pay more than $10,000 in civil penalties to the federal government, undergo anti-discrimination training, and have its employment eligibility verification practices monitored for two years.

The settlement illustrates the fine line employers must walk between verifying employee work authorization, on one hand, and not running afoul of federal (and state) anti-discrimination laws, on the other. The Littler Immigration and Global Mobility Practice group has noticed an increase in enforcement activity by the OSC.  To balance these requirements, employers must ensure not only that each employee have a complete and accurate I-9 on file, and goes through the E-Verify process if registered, but that they do not “over verify” by, for example, asking employees to provide specific or unnecessary documents to support work authorization.   

Read the DOJ’s Press Release here.

For general information concerning the E-Verify process, click here. For the E-Verify Memorandum of Understanding, click here. For a discussion on immigration-related unfair employment practices, visit the Office of Special Counsel’s website by clicking here.