GUEST POST: 3 ways to avoid Macy’s recent immigration workplace problems

Today we have a guest blogger at The Employer Handbook. It’s my colleague, Kristen Repyneck. Kristen is an associate at Dilworth Paxson LLP where she represents clients seeking non-immigrant and immigrant visas through family, employment, and investment, including investment in USCIS certified regional centers under the EB-5 Immigrant Investor Visa Program.

(Want to guest blog at The Employer Handbook? Email me).

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Recently the Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) announced a settlement with department-store heavyweight Macy’s Retail Holdings and other Macy’s entities resolving allegations that the company violated the anti-discrimination provisions of the Immigration and Nationality Act. OSC’s investigation was initiated based on several calls to the worker hotline; the investigation revealed that Macy’s engaged in unfair documentary practices against work-authorized immigrant employees during the employment eligibility reverification process, and that some employees suffered economic harm through lost work or seniority as a result (Macy’s denied the allegations).

You should all be familiar with the employment authorization verification process–featuring Form I-9. Form I-9 requires employers to verify documents establishing every employee’s identity and authorization to work. The INA’s anti-discrimination provision prohibits employers from treating workers differently in this process by demanding more or different documents, or by limiting the worker’s choice of documents, based on an individual’s immigration status or national origin. Here, OSC found that Macy’s violated the antidiscrimination provisions in the process of reverifying employees’ employment authorization (or EAD)–this step is necessary when an employee’s EAD has an expiration date.

Under last month’s settlement agreement, Macy’s agreed to revise its employment eligibility reverification policies and procedures and provide training to its human resources personnel across the country on the INA’s anti-discrimination provision. Macy’s also agreed to pay $175,000 in civil penalties to the United States, and to create a $100,000 back pay fund to compensate any individuals who suffered lost wages or loss of seniority as a result of its practices. In addition, Macy’s employment eligibility verification practices will be subject to monitoring by the DOJ and reporting requirements for a period of two years.

Employers, remember: to avoid discrimination in the employment eligibility verification and re-verification process, you must (a) honor documentation that on its face reasonably appears to be genuine, relates to the person, and satisfies the requirements of Form I-9, (b) not request more or different documents than are required by law, and (c) permit all employees to present any document or combination of documents acceptable by law.

For more on the hottest of hot immigration law issues, check out this recent webinar on employee verification and benefits of E-Verify