United States: DOJ Expands Time Frame to Investigate Immigration-Related Discrimination Actions

Earlier in 2017, new rules became effective from the U.S. Department of Justice's (DOJ) Civil Rights Division impacting the authority of the Immigrant and Employee Rights Section (IER)—formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices—to self-initiate immigration-related discrimination investigations. While they were overshadowed by President Trump's inauguration and executive orders, these new regulations merit attention because they increase the time frame for IER to conduct investigations of companies. Previously, IER may have been deterred by the quicker time frames from learning about an unfair employer practice, opening an investigation, and filing a complaint. Now, the new rules provide IER with ample time to complete its investigation and pursue penalties against an employer—a development that raises both the stakes and the onus of compliance for employers.

What Does IER Do? 

IER is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act of 1965 (INA). That provision, found at 8 U.S.C. Section 1324b, generally states that it is improper for a company to discriminate against someone based on his or her national origin or citizenship status. Individuals who feel they have been injured by a violation of this provision can file a discrimination complaint directly with IER within 180 days of the alleged act by the employer. IER also has the authority to initiate independent investigations based on information developed during individual charge investigations or information provided by other government agencies or the general public. Thus, IER serves a similar function as the Equal Employment Opportunity Commission (EEOC).

IER commonly investigates employers that are using unfair documentary practices to screen employees. This typically occurs when an employer asks individuals—oftentimes lawful permanent residents—to provide specific documentation (e.g., the permanent residency card) for the completion of the Form I-9. Requiring specific documentation is a violation of the anti-discrimination provision of the INA. As a result, an employer that thinks it is being prudent in complying with work authorization requirements for the Form I-9 can find itself in trouble with IER when it takes its screening measures too far. 

The Expansion of IER's Investigatory Time Frame

The regulations governing unfair immigration-related employment practices within IER's jurisdiction provide two different avenues for investigation: an impacted employee can file a charge with IER alleging misconduct or IER itself can open an investigation into discriminatory actions.

Employee-Prompted Investigations

Individuals alleging unfair treatment must file a charge with IER within 180 days of the wrongful employment practice. IER must then undertake and complete its investigation of the charge within 120 days. If IER believes there was discriminatory conduct, it may file a complaint on behalf of the impacted employee with an administrative law judge. If IER concludes there was no discriminatory conduct, then it must inform the impacted employee that it will not be filing a complaint. The impacted employee then has 90 days to bring a complaint before an administrative law judge. There were no significant changes to employee-prompted investigations in the new regulations.

IER-Initiated Investigations

IER also has the ability to initiate investigations itself when a charge isn't filed by an individual. But in the new regulations, IER seeks to clarify the time limitations associated with these self-initiated investigations. The motive behind IER's clarification is curious.

The governing statute for IER's self-initiated investigations, 8 U.S.C. Section 1324b(d)(1), states the following:

The Special Council [otherwise known as IER] may, on its own initiative, conduct investigations respecting unfair immigration-related employment practices and, based on such an investigation and subject to paragraph (3), file a complaint before such a judge. [Emphasis added.]

Paragraph (3) states the following:

No complaint may be filed respecting any unfair immigration-related employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel. [Emphasis added.]

The relationship between these two provisions is confusing because a charge is never filed in an IER-initiated investigation. Since no charge is filed, the new regulations essentially substitute "filing of the charge" with "open[ing] an investigation" to clear any confusion. In other words, the new regulations state that IER must only open an investigation into the alleged discriminatory act within 180 days of the unfair action to satisfy 8 U.S.C. § 1324(d)(3). While this is similar to the time frame allowed for an employee to report an act to IER, the same additional time deadlines associated with filing a complaint in an employee-initiated investigation don't apply to IER in a self-initiated investigation. Instead, IER would likely only be subject to equitable deadlines for filing complaints and the five-year statute of limitation for imposing civil penalties. This is a dramatic increase in IER's investigatory authority, especially when looking at the history of the governing regulations and DOJ's past practices.

With these new regulations, the DOJ is changing its course from previous regulations passed to implement 8 U.S.C. § 1324(d). In the 1987 version of the regulations, the DOJ made clear that Congress intended to place the 180-day limit on IER's actions in a self-initiated investigation. Specifically, the DOJ stated the following:

Section 44.304(b) has been amended in the final rule to limit the period of time in which the Special Counsel, on his or her own initiative, may investigate and file a complaint of an unfair immigration-related employment practice. We believe that requiring a complaint to be filed within 180 days of the occurrence of an unfair immigration-related employment practice is a reasonable implementation of the desire of Congress reflected in 8 U.S.C. § 1324b(d)(1), (3), to place a time limit on the actions of the Special Counsel. [Emphasis added.]

The DOJ also admits in its current rulemaking that its past practice has been to enter into stipulations to extend the complaint filing date when IER needs more time to conduct an investigation or facilitate settlement. Now these stipulations will likely not be needed under the new regulations. As a result, IER appears to be changing its prior practices by increasing its ability to self-investigate claims of national origin discrimination by only requiring that it open an investigation—not file a complaint—within 180 days of the alleged discriminatory act.

Impact on Employers

The regulations promulgated by the DOJ were developed under the Obama administration. So far, the Trump administration has not weighed in on how it will address this additional investigatory authority. There does not, however, appear to be a dramatic increase in the amount of self-initiated investigations started by IER.

Despite the lack of data on increasing investigations, it is clear that IER has much more wiggle room to self-initiate investigations into employer misconduct. As a result, employers find themselves in an even more difficult situation when it comes to I-9 compliance. If employers go too far in requiring specific documentation during the I-9 intake process or act in other discriminatory ways, they could find themselves subject to a self-initiated investigation from IER that drags on for years.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions