Over the past few months, the Immigrant and Employee Rights Section (IER) of the Department of Justice has entered into several settlements from which employers can learn some valuable lessons so that these discriminatory practices are not followed.

In a recent settlement, a transportation and parking management company agreed to settle an IER charge to resolve IER's determination that the company discriminated against the Charging Party when it refused to honor the employee's valid Employment Authorization Document (EAD).

Here, an employee presented an EAD to the employer which appeared to have expired. The employee was a beneficiary of Temporary Protected Status (TPS) based upon her status as a national of Haiti. To qualify for TPS, an individual must be a national of the foreign country with a TPS designation; be continuously physically present in the United States since the effective date of designation; have continuously resided in the United States since a date specified by the Secretary of Homeland Security; and not be inadmissible to the United States.

The employee's EAD had been automatically extended by the federal government due to ongoing litigation on whether to terminate TPS for Haiti. Thus, the EAD, even with an expired date, showed the employee was authorized to work in the United States. IER determined that the employer did not believe the employee had TPS from Haiti because the EAD listed the country of birth as Bahamas. However, as noted above, the test is not citizenship of a country, rather it is whether you are a foreign national of a designated TPS country. Thus, the employer should have the reviewed the category code on the EAD and its expiration date and then checked the USCIS website, where it shows country's automatic extension date.

In the settlement, the employer agreed to reinstate the employee, pay her $3,668 in backpay, pay $2,000 in civil penalties, and other standard remedies - view an IER webinar, and revise any problematic policies.

In another settlement, the IER determined that a transportation management company discriminated against an employee because he was not a U.S. citizen. The employer, which used a third-party staffing agency to fill its positions on the project, asked the agency to withdraw a job offer to a worker when the company learned he was not a U.S. citizen.

In order to require U.S. citizenship for a position, there must be a requirement under federal, state, or local laws or federal contracts that specific positions to be filled only by U.S. citizens. In this situation, the company did not have any legal justification for withdrawing the offer.

In the settlement, the employer agreed to pay the employee backpay, pay $4,610 in civil penalties, and the other aforementioned standard remedies.

The third settlement involved a successor in interest to a staffing company, which was found liable for the predecessor's actions. In this case, the IER concluded the predecessor employer required that non-U.S. citizens present specific types of documentation reflecting their immigration status to prove their permission to work. However, U.S. citizens could present any acceptable document of their choosing.

U.S. citizens, U.S. nationals, lawful permanent residents, asylees, refugees and other non-U.S. citizens with permission to work may legally work in the United States if they can prove their identity and permission to work. Federal law prohibits employers from asking for specific or unnecessary documents because of a worker's citizenship, immigration status or national origin. Employers must allow workers to present whatever acceptable documentation the workers choose and cannot reject valid documentation that reasonably appears to be genuine and relates to the worker.

In the settlement, the employer agreed to pay $46,050 in civil penalties plus implement the other standard remedies.

In the past 5-10 years, the IER has become much more aggressive in its investigations and settlements. Often, the legal fees can be between $25,000 and $50,000 even if the employer settles the charge. Thus, employers would be wise to learn from the above errors.

Posted: September 30, 2024