U.S. Department of Justice Civil Rights Division

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1 U.S. Department of Justice Civil Rights Division

2 What Does OSC Do? OSC investigates and prosecutes employment discrimination on the basis of citizenship status and national origin, which is prohibited by the anti-discrimination provision of the Immigration and Nationality Act. The provision is codified at 8 U.S.C. 1324b

3 Why is this Presentation Critical to OSC? OSC s jurisdiction reaches all 50 states OSC relies on its partnerships with state and local fair employment practices agencies to disseminate information about OSC and receive referrals of cases within OSC s jurisdiction

4 Why is this Presentation Critical to You? OSC may have jurisdiction where other agencies do not. OSC can open independent investigations based upon a referral or a tip from you.

5 Presentation Overview OSC History Types of Discrimination OSC Investigations and Possible Outcomes Form I-9 Process and Special Issues Hot topics: E-Verify/SSN No-Match OSC and Civil Rights Division Resources

6 Historical Overview Immigration Reform and Control Act of 1986 (IRCA) amended the Immigration and Nationality Act Imposed employer sanctions for knowingly hiring undocumented workers Created Form I-9 (Employment Eligibility Verification Process) Created OSC to enforce the anti-discrimination provision

7 Prohibited Conduct Under the INA s Anti-Discrimination Provision Citizenship/Immigration status discrimination National origin discrimination Document abuse Retaliation or Intimidation

8 Citizenships Status Discrimination Treating employees differently based on citizenship status Unless required or permitted by law Hiring/firing workers, or in recruitment or referral of workers for a fee Employers with more than 3 workers covered

9 Who is Protected from Citizenship Status Discrimination? Protected: U.S. citizens and Nationals Recent lawful permanent residents Asylees Refugees Not Protected: Non-immigrant visa holders Asylum applicants Lawful permanent residents who have not applied for naturalization within 6 months of their eligibility Undocumented workers

10 Citizenship Status Discrimination Examples: U.S. citizen only hiring policy Preferring temporary visa holders Preferring undocumented workers

11 National Origin Discrimination Treating employees differently based on: Country of origin/ancestry Accent Appearing to be from a certain country Hiring/firing workers, or in recruitment or referral of workers for a fee Extends to employers that are not covered by Title VII (4-14 workers)

12 Who is Protected from National Origin Discrimination? Protected: All work authorized individuals Not Protected: Undocumented individuals

13 National Origin Discrimination Examples: Only hiring native English speakers Preferring people from a particular country Not hiring someone because s/he has a foreign accent

14 Document Abuse Employers may not, for the purpose of verifying a worker s employment eligibility: request more or different documents reject reasonably genuine-looking documents, specify certain documents based on citizenship status or national origin

15 Who is Protected from Document Abuse? Protected: All work-authorized individuals Not Protected: Undocumented individuals

16 Scope of Document Abuse Provision Imposing additional barriers or burdens for certain individuals in any aspect of the employment eligibility verification process beyond what is required under federal law Employment eligibility verification process includes the Form I-9, E-Verify, and any other requirements by an employer imposed for the purpose of verifying work authorization

17 Retaliation or Intimidation Protection for people who: file a charge with OSC cooperate with an OSC investigation contest action that may constitute unfair documentary practices assert rights under the INA's anti-discrimination provision from intimidation, threats, coercion, and retaliation.

18 Retaliation or Intimidation Examples A lawful permanent resident who explains he is not required to present his green card for the Form I-9 is terminated A worker who complains that an employer is preferring undocumented workers has his hours reduced A worker who threatens to file a charge of citizenship status discrimination with OSC and is demoted

19 Document Abuse and the Form I-9 The purpose of this form is to establish a worker s identity and authorization to work in the U.S There are 3 sections on the I-9 Form

20 ALL employees must complete, sign, & date Section 1 by the time employment begins. Form I-9: Section 1 Employees are required to attest to citizenship status as a U.S. citizen, noncitizen national, lawful permanent resident, or alien authorized to work Office of Special Counsel for Immigration Related Unfair

Form I-9: Section 2 Employers complete section 2 by examining employees documentation ALL employees may present either List A OR List B + List C document

21 Form I-9: Section 2 Employers complete section 2 by examining employees documentation ALL employees may present either List A OR List B + List C document Employers may not request documents before acceptance of job offer Employers may not require employees to present documents proving their selected citizenship status

22 Form I-9: Section 3 Only certain employees need to be reverified Employer must accept any List A or List C document Office of Special Counsel for Immigration-Related Unfair Employment Practices:

23 Document Abuse and the Form I-9 Examples: Requiring only non-u.s. citizens to provide a List A document, such as a green card Requiring new U.S. citizens to provide certificates of naturalization Rejecting driver s licenses if presented by a non-u.s. citizen Requiring all Latinos to provide a Social Security Card Reverifying green cards (Form I-551)

24 Other Common Form I-9 Problems Rejecting less common I-9 documents, such as receipts Rejecting valid older versions of documents, e.g. INS-issued Resident Alien cards with no expiration date or older Social Security cards Not understanding documents often presented by refugees or asylees or individuals with Temporary Protected Status

25 E-Verify Program An electronic program that verifies an individual s authorization to work in the U.S. Run by the Department of Homeland Security, in partnership with the Social Security Administration OSC investigates discriminatory use of E-Verify

26 E-Verify Program: How It Works Employer enters Form I-9 information into E-Verify E-Verify compares information with gov t databases E-Verify issues a tentative nonconfirmation (TNC) when information doesn t match The employer must promptly tell an employee about a TNC. An employee who decides to contest the TNC must be provided with a Referral Date Confirmation Printout. The employee has 8 federal government work days to begin the TNC resolution process. While an employee is the process of resolving a TNC, the employer may not take any adverse action. E-Verify issues a final nonconfirmation when information cannot be verified, and employer may terminate

27 E-Verify: Do s and Don ts Should only be used after hire and Form I-9 completion Generally used for new hires only Employers cannot take any adverse action against a worker while the worker is resolving the TNC A TNC does not mean the worker is unauthorized

28 E-Verify: Discriminatory Conduct Selectively prescreening applicants through E-Verify before hire Selectively failing to give TNC notices Selectively running existing workers through E-Verify Selectively refusing to allow employees to work while contesting TNCs Call OSC to discuss referrals of charges suggesting or alleging such behavior

29 Social Security No-Match Issues Mismatch between Social Security number and name Comes from a variety of sources, such as: Social Security Administration Health insurance providers Employers should give workers a reasonable amount of time to resolve the issue A no-match alone is not a sufficient basis to take adverse action against a worker

30 OSC Enforcement OSC can investigate employers in one of two ways: Charge-Based OSC investigates charges of discrimination filed by injured parties or their representatives OSC-Initiated OSC can open independent investigation if OSC believes that an employer may have engaged in unfair immigration-related employment practices

31 OSC Enforcement Charges must be filed within 180 days of discrimination Charge Forms available from OSC Website in English, Spanish, Chinese, Vietnamese, Arabic, Haitian Creole, Korean, Russian and Tagalog. Charges may be filed in any language

32 Possible Outcomes of an OSC Investigation Dismissal if no reasonable cause/no jurisdiction Attempt to settle if reasonable cause to believe discrimination occurred File Complaint before ALJ if settlement fails Charging Party may file own complaint

33 Remedies Hire or rehire Back pay Injunctive Relief Training Monitoring Civil penalties

34 Hotline Intervention Allows OSC to help workers directly and intervene informally on their behalf Callers can remain anonymous if they wish and can ask to speak in any language Open 9am-5pm, Monday-Friday (Eastern)

35 Increasing Collaboration Between Our Two Agencies How can we work together? Training for your staff on how to identify possible referrals to OSC Conducting webinars or joint webinars for employers or employees in your jurisdiction Identifying speaking opportunities and inviting each other to speak at conferences and outreach events Providing outreach materials for your waiting room OSC relies on state and local partners to reach potential victims across the nation

36 OSC Resources Contact OSC for printed materials or enroll in a webinar by signing up on OSC s web page Call OSC at (202) to speak with Sebastian Aloot or Elise Sandra Shore, Special Litigation Counsel (current Referral Duty Attorneys) Educational materials and referral information are on OSC s website: OSC at OSCReferral@usdoj.gov

37 Rights Protected by the Civil Rights Division Federal Coordination & Compliance Section (FCR) Enforces laws that prohibit discrimination because of national origin, race or color by recipients of federal funds. Criminal Section (CRM) Prosecutes those who are accused of using force or violence to interfere with a person's federally protected rights because of that person's national origin These rights include areas such as housing, employment, education, or use of public facilities Disability Rights Section (DRS) Investigates discrimination complaints based on disability by enforcing the Americans with Disabilities Act (ADA) Educational Opportunities Section (EOS) Enforces laws in elementary and secondary schools as well as public colleges and universities and also addresses discrimination in all aspects of education

38 Rights Protected by the Civil Rights Division Employment Section (ELS) Investigates complaints of a pattern or practice of illegal employment discrimination by a state or local government Housing and Civil Enforcement Section (HCE) Investigates complaints of a pattern or practice of discrimination in access to or equal enjoyment of a public accommodation Investigates complaints alleging discrimination in housing based on race/color, national origin, religion, sex, familial status, disability, ; also handles individuals cases referred by HUD Investigates predatory lending practices (such as redlining) Special Litigation Section (SPL) Enforces the constitutional rights of institutionalized persons Investigates complaints that a police department has a pattern or practice of discriminating on the basis of race and national origin (such as racial profiling) Voting Section (VOT) Investigates discrimination in the voting process, which includes, denying assistance to a voter when casting a ballot and dilution or denial of minority voters rights, by enforcing provisions of the Voting Rights Act, the Voting Accessibility for the Elderly and Handicapped Act, the Uniformed and Overseas Citizens Absentee Voting Act, the National Voter Registration Act ( Motor Voter ) and the Help America Vote Act

39 THANK YOU! Office of Special Counsel for Immigration-Related Unfair Employment Practices (202)

U.S. Department of Justice Civil Rights Division

U.S. Department of Justice Civil Rights Division IMAGE Best Practice Establish and maintain appropriate policies, practices and safeguards to ensure that authorized workers are not treated differently