The Civil Rights Division of the Department of Justice (DOJ) recently issued a series of “dos” and “don’ts” for employers audited by Immigration and Customs Enforcement (ICE). These self-described best practices focus on steps employers should take to avoid charges of discrimination when faced with I-9 audits.
The “dos” include developing a transparent process for interacting with employees during the audit, particularly those identified by ICE as having deficient I-9 forms or suspect identity and/or work authorization. The DOJ recommends that employers communicate in writing with these employees to notify them of the audit and to describe the specific basis for the deficiency or discrepancy and what information or documents are needed. The DOJ also recommends employers explain that the information or documents sought are in response to the audit and provide employees with a “reasonable” (but unspecified) amount of time to respond. If workers are represented by a union, the DOJ advises that employers inform the union about the audit and investigate whether a collective bargaining agreement triggers any obligations (e.g., to ensure that any adverse employment action taken as a result of the I-9 audit is in compliance with procedures and due process set forth in the agreement).
In addition, the DOJ offers several “don’ts” – each of which could lead to charges of employment discrimination. In particular, the DOJ advises that employers avoid singling out employees solely because they “look or sound foreign,” or based on assumptions about their work authorization (e.g., selectively scrutinizing the I-9 forms of employees of a particular race or national origin). Other “don’ts” include suspending or terminating employees without providing them a reasonable opportunity to comply, as well as either limiting the range of permissible I-9 documents or requiring more information or documents than required by ICE.
The DOJ’s guidance comes in the midst of an unprecedented uptick in I-9 audits by ICE.
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