[Blogger’s Note: Many thanks to my talented co-author, Tieranny Cutler]
Beware the Employer Risks Nesting in President Biden’s Comprehensive Immigration Reform Bill
At the urging of President Biden, two members of Congress – Senator Robert Menendez and Representative Linda Sanchez – introduced companion 353-page bills last month in the Senate and the House entitled the “U.S. Citizenship Act of 2021.”
Presented as a comprehensive modernization of our nation’s long outdated immigration laws, this proposed legislation – uniformly lauded by Democrats and opposed by Republicans – features many provisions that U.S. employers may welcome, including, as this White House Fact Sheet details, a path to legal status, employment authorization, and eventually, American citizenship, for some 11 million undocumented noncitizens; relief for Dreamers, persons in Temporary Protected Status, and immigrant farmworkers; and improvements to the legal, employment-based immigration system.
Although the media has widely reported on the proposal in broad strokes, little attention has been given to one significant part known as Title V (“Employment Authorization and Protecting Workers from Exploitation”).
As we shall show, employers should be wary of Title V because, if this title were passed as a standalone act, or tacked onto (even in pieces) must-pass legislation in the Democratic-controlled house and a (post-filibuster) Democratic-controlled Senate, it would dramatically expand potential employer liability, create new penalties, and increase compliance obligations involving I-9 and E-Verify employment eligibility verification. It would also create a legal basis for noncitizens who are material witnesses or deemed likely to be “helpful” to the investigation of a workplace claim under a host of federal, state and local employment laws to be granted an array of immigration benefits under the legal immigration system (including U visa status, temporary relief from removal, employment authorization, and a path to lawful permanent resident status).
Expanded Employer Liability for Discrimination Based on National Origin or Citizenship Status
If enacted, Title V (§ 5105) would expand the population of potential claimants protected against citizenship status discrimination to include all noncitizens with employment authorization, including presumably employment-based nonimmigrants and holders of Employment Authorization Documents (EADs). Under current law, Immigration and Nationality Act (INA) § 274B(a), only “protected individuals” may claim citizenship status discrimination. Protected individuals are currently defined as U.S. citizens, lawful permanent residents who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, and persons granted asylum or refugee status. Under § 5105, enforcement jurisdiction over such claims would remain with the Immigrant and Employee Rights (IER) Section of the Civil Rights Division within the Department of Justice (formerly, the Office of Special Counsel for Immigration-Related Unfair Employment Practices). This change would thus prevent employers from refusing to sponsor nonimmigrants for employment-based immigration benefits (such as STEM-based optional practical training, work visas, and green cards) for particular positions if the employer already has a practice of sponsoring foreign workers in these jobs.
Additionally, Title V (§ 5105) would extend protection against national origin and citizenship status discrimination beyond the acts of hiring and discharge from employment to also include “verification of the individual’s eligibility to work in the United States” or “verification of employment authorization,” and would transfer enforcement jurisdiction over this form of national origin discrimination from the Equal Employment Opportunity Commission (EEOC) to the IER.
Expanded Employer Liability for Unfair Documentary Practices and for I-9 and E-Verify violations
Title V (§ 5105) would expand liability for unfair documentary practices (i.e., where an employer requests more or different documents than minimally required to verify employment eligibility, or refuses to accept such documents). It would also add the “disparate impact” standard of proof through statistical, pattern-based evidence, and extend such liability beyond citizenship status discrimination to include national origin discrimination as well. (Under current law, unfair documentary practices can only be established based on proof of an intention or purpose to discriminate, i.e., the “disparate treatment” standard, and such liability is now limited to citizenship status discrimination.)
Moreover, Title V (§ 5105) would create new forms of unfair immigration-related employment practices involving improper use of the “employment verification system” in INA § 274A (i.e., the I-9 process and the E-Verify system), referred to in § 5105 as the “System,” if an employer were to (A) “deny workers’ employment or post-employment benefits;” (B) misuse the System to discriminate based on national origin or citizenship status; (C) require an employee or prospective employee to use any “self-verification feature of the System as a condition of application or employment;” (D) use an immigration status verification system, service, or method other than the System; (E) grant unauthorized access to document verification or System data; or (F) fail to take reasonable safeguards against unauthorized loss, use, alteration, or destruction of System data.
Further, Title V (§ 5105) would prohibit withholding of employment records required to be maintained under federal, state, or local law, including dates or hours of work and wages received, and penalize the failure to provide such records to any employee, as to whom the records pertain, upon the employee’s request. It would also require the EEOC to refer all matters alleging immigration-related unfair employment practices filed with the Employment Authorization Commission (established under § 5101 of Title V, described below) to the IER.
In addition, Title V (§ 5105) would increase existing civil fine amounts across the board for unlawful immigration-related discrimination or other unlawful practices committed against individuals, with fines levied on a per-person basis and adjusted according to the rate of inflation. The new fine levels would take effect one year after the enactment of the statute and cover violations which occur during the intervening 12 months since enactment. Depending on the type of unlawful immigration-related discrimination or other unlawful practices found to have been committed, fines under this section would be pegged at $2,000 to $5,000 for each individual subjected to an unfair immigration-related employment practice, with penalties increasing to as much as $25,000 per person for employers who are repeat offenders.
Protecting Workers from “Exploitation”
Under Title V (§ 5102) a noncitizen with information provided in good faith about a labor or employment violation resulting in a workplace claim would be given U nonimmigrant visa status, as long as any government official involved in labor and employment law enforcement were to certify that the individual cooperated with the Department of Homeland Security (DHS), the Department of Labor (DOL), the EEOC, the National Labor Relations Board (NLRB), or certain other federal, state or local government agencies in the investigation and prosecution of the claim. In the event DHS conducts an enforcement action at a facility where a workplace claim has been filed or based upon information an employer provided to DHS in retaliation against noncitizen employees, DHS will allow any arrested or detained noncitizens to remain in the U.S. until after DHS notifies law enforcement and allows the enforcing agency the opportunity to conduct interviews of these noncitizens. In addition, individuals who have filed a workplace claim and are material witnesses or have filed a U visa application based upon this section will be entitled to a stay of removal and employment authorization until either the adjudication of the U visa application or resolution of the workplace claim.
Title V (§5103) would prescribe a new penalty of up to $5,000 to be added to INA § 274A (involving employment-eligibility verification) if an employer is found to have engaged in civil violations of labor laws related to wages and hours, labor relations, family and medical leave, occupational health and safety, civil rights, or discrimination as long as an enforcing agency has made a finding of a violation with respect to an unauthorized worker.
Preservation of Workplace Rights
The bill would preserve all rights, remedies, and relief provided under any federal, state, or local law relating to workplace rights, including reinstatement and back pay, notwithstanding an employee’s status as an unauthorized noncitizen during employment or during the back pay period, or the failure of the employer or employee to comply with the employment-eligibility verification requirements of INA § 274A or with any other provisions of federal law relating to the unlawful employment of noncitizens. The bill would also allow such an employee to pursue other available causes of action in any civil proceeding. In effect, Title V would reverse the U.S. Supreme Court decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), which held that the NLRB had no discretion to award back pay to a noncitizen who was unauthorized for employment in the United States.
Employment Authorization Commission
Title V (§ 5101) would establish an Employment Authorization Commission (EAC) comprised of six members noted for their knowledge and experience in the field of employment verification, representing the employer, labor, and civil rights communities. The EAC would (A) make recommendations to the President and Congress on policies to verify the eligibility of employment of noncitizens in the U.S.; (B) evaluate methods to verify employment that are free from discrimination and respect the rights of employment-authorized workers; (C) review error rates for E-Verify and its impact on various populations; and (D) issue a report within 180 days of the appointment of all members. Designed to be temporary in nature, the EAC would terminate within two years of its inception.
While the U.S. Citizenship Act of 2021 is unlikely to be enacted in its present form, employers should remain vigilant about the possible inclusion of Title V in other legislation – whether or not related to immigration. For if this title were enacted, its wide-ranging provisions would materially expand immigration-related worksite liabilities and penalties far beyond current law.