If DHS is the rock, DOJ is the hard place and employers are stuck in between. The recent Catholic Healthcare West (CHW) and Hoover, Inc. settlements with the DOJ regarding allegations of immigration-related employment discrimination highlight the very narrow path that employers must tread between ensuring that they do not hire or employ any unauthorized workers (8 U.S.C. § 1324a) while at the same time ensuring that they do not discriminate against any individual with respect to the hiring or discharging of any employee (8 U.S.C. § 1324b). Both provisions are found in the Immigration and Nationality Act, but two different agencies are responsible for their enforcement – DHS ICE (§ 1324a) and DOJ OSC (the Civil Rights Division's Office of Special Counsel for Immigration-Related Unfair Employment Practices) (§ 1324b).
On October 19, 2010, the DOJ announced a settlement with CHW resolving allegations that CHW "engaged in a pattern or practice of citizenship status discrimination by imposing unnecessary and discriminatory hurdles to employment for work-authorized individuals." Specifically, CHW required non-U.S. citizen and naturalized U.S. citizen new hires to provide more work authorization documents than required by federal law, but permitted native born U.S. citizens to provide documents of their own choosing. CHW agreed to pay $257,000 in civil penalties – the largest amount of civil penalties ever paid to resolve such allegations. In addition, CHW will have to implement additional policies, conduct more training, and provide periodic reports to the DOJ for three years.
On November 10, 2010, the DOJ announced a settlement of allegations of immigration-related employment discrimination with Hoover, Inc., the leading manufacturer of vacuum and carpet cleaners. The settlement resolved allegations that Hoover "engaged in a pattern or practice of employment discrimination by imposing unnecessary and discriminatory hurdles in the I-9 process upon lawful permanent residents." Specifically, Hoover required all permanent residents who presented a permanent resident card (greed card) for I-9 purposes to produce a new green card when their old card expired. It did not require the same of U.S. citizens. However, permanent residents are always work authorized, regardless of the expiration of their documentation. Hoover will pay a $10,200 settlement under the agreement and train its human resources personnel. In addition, Hoover will provide periodic reports to the DOJ for a year.
As DHS has stepped up its enforcement efforts directed towards employers that hire unauthorized workers, the DOJ has simultaneously stepped up its enforcement efforts directed towards employers that go too far by demanding too many work authorization documents. Employers need to be careful not to get caught in the middle.
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