In August, the Obama administration fined a Nebraska business $200,000 and demanded they pay “uncapped” backpay to foreign workers against which they are accused of discriminating after the company asked them to provide proof of their legal status.
The Justice Department announced today that it reached a settlement with Nebraska Beef Ltd., a meat packing company headquartered in Omaha, Nebraska. The settlement resolves an investigation by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) into whether the company was engaging in employment discrimination in violation of the Immigration and Nationality Act (INA). In particular, OSC investigated whether the company was requiring non-U.S. citizen employees, because of their citizenship status, to present proof of their immigration status for the employment eligibility verification process.
The department’s investigation found that the company required non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documentary proof of their immigration status to verify their employment eligibility. The INA’s anti-discrimination provision prohibits employers from making documentary demands based on citizenship or national origin when verifying an employee’s authorization to work.
Asking foreigners if they’re present legally in the country or not can be grounds for a federal lawsuit.
Under the settlement agreement, Nebraska Beef Ltd. will pay a $200,000 civil penalty to the United States and will establish an uncapped back pay fund to compensate individuals who lost wages because of the company’s practices. The settlement also requires the company to undergo compliance monitoring for two years, train its employees on the anti-discrimination provision of the INA, and to review and revise its office policies.
According to the settlement, within nine months, Nebraska Beef Ltd. must let foreigners they chose not to hire know that they’ll send them backpay, and in ten months, they must send foreigners backpay. The DOJ also demanded that the company post their department’s “If You Have a Right to Work” posters in English and Spanish and provide a copy of it to all applicants for two years afterward. The DOJ instructed Nebraska Beef Ltd they are prohibited from “requesting citizenship or immigration status from job applicants or employees.” Nebraska Beef Ltd. will also have to go great lengths to train employees and managers in a new, Obama administration-approved hiring process.
In other words, in the very act of trying to determine whether or not the immigrants they were hiring where in the country legally, the company broke existing immigration law and drew the ire of the DOJ. 8 U.S. Code § 1324b, which Nebraska Beef Ltd. is charged with violating, makes an exception for discriminating against illegal aliens in hiring:
(1) General rule: It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment—
(A) because of such individual’s national origin, or
(B) in the case of a protected individual (as defined in paragraph (3)), because of such individual’s citizenship status.
But asking applicants to provide documentation of their legal immigration status is against the law. The DOJ says Nebraska Beef Ltd. didn’t use E-Verify “appropriately,” thus the violation the DOJ cited:
(6) Treatment of certain documentary practices as employment practices
A person’s or other entity’s request, for purposes of satisfying the requirements of section 1324a(b) of this title, for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1).
The settlement came in August, as 689,000 Americans lost jobs and foreign job gains outpaced natives’ by 2.6 to one.
Email Katie at firstname.lastname@example.org. Follow her on Twitter: @k_mcq.