| Since 2009, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), in the Justice Department's Civil Rights Division, has actively investigated and prosecuted violations of the anti-discrimination provisions related to the Employment Eligibility Verification form (the I-9). While employers have the obligation to obey federal immigration law by hiring only authorized workers, they also must not violate anti-discrimination laws when hiring or firing workers. Employers who discriminate or retaliate against workers may be required to hire or re-hire the worker, pay back wages, and change internal policies to avoid further discrimination. Under federal law, employers also may become liable for monetary fines or the workers' legal fees. Under California law, employers are also prohibited from engaging in unfair immigration-related practices against an employee who makes a lawful change of name, social security number, or federal employment authorization document. As an example of the OSC's recent activism, OSC collected no monetary penalties from employers in 2007. However, for fiscal year 2013, OSC set a new record by collecting almost $900,000 in civil penalties and $250,000 in back pay relief for victims of discrimination. Below is information regarding two immigration benefits that give rise to potential discrimination/retaliation claims, as well as the OSC's most recent enforcement action. Texas Federal District Court Temporary Blocks Expanded DACA/DAPA Employment Authorization Cards On November 20, 2014, President Barack Obama announced an expansion of the Deferred Action for Childhood Arrivals (DACA) program for youth who came to the United States as children. He also announced temporary benefits for certain undocumented parents of U.S. citizens and parents of lawful permanent residents. Individuals who are eligible for benefits under expanded DACA or DAPA are also eligible to receive an employment authorization document (EAD or work permit) for the period during which he or she has deferred action. The Department of Homeland Security (DHS) expects up to 4.4 million people to benefit from either expanded DACA or DAPA. At the moment, U.S. Citizenship and Immigration Services (USCIS) is not accepting applications for either expanded DACA or DAPA based on a Texas federal district court order temporarily blocking the implementation of these programs. However, when USCIS is able to process applications and issue temporary work permits, California employers should expect employees to make updates based on a lawful change of name, social security number, or federal employment authorization document. DHS automatically extends the validity of EADs issued under the TPS designation of El Salvador from March 9, 2015 through September 9, 2015 Temporary protected status (TPS) is a temporary immigration benefit that allows qualified individuals from designated countries (or parts of those countries) who are in the U.S. to, among other benefits, receive a temporary work permit. The validity of the work permit is tied to the period the country is designated for TPS by the DHS Secretary. Current countries under TPS designation include El Salvador, Guinea, Haiti, Honduras, Liberia, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, and Syria. As a recent example, the DHS extension of TPS designation for El Salvador is effective March 10, 2015 through September 9, 2016. EADs or work permits issued under TPS El Salvador are set to expire on March 9, 2015. However, DHS also automatically extended the validity of EADs issued under TPS El Salvador for six (6) months from March 9, 2015 to September 9, 2015. This means that certain employees whose EADs expired on March 9, 2015 do not need to present an unexpired EAD until September 9, 2015 due to the automatic extension of the validity of EADs issued under the TPS designation of El Salvador. However, under federal law, employers are still subject to Form I-9 verification requirements and will need to correct a previously completed Form I-9 by making changes to Section 1 and 2, or Section 3 of the employee's Form I-9. Under both California and federal law, employers should determine if EADs expiring on March 9, 2015 are eligible for the automatic extension before taking any adverse action against the employee. Under federal law, employers who request more or different documents-such as country of origin or registration for TPS program extensions-to prove work authorization than required by the Form I-9 process may violate the anti-discrimination provisions of the INA. The OSC investigates charges of discrimination when employers treat employees in a discriminatory manner based on immigration status, national origin, or race. In the case of TPS status, OSC will investigate claims where an employer does not allow employee(s) to work despite the automatic extension of an EAD. OSC has provided both a video and a handout to help employers with the Form I-9 process specific to TPS status: - Temporary Protected Status in a Nutshell: What Employers Need To Know
(link: http://www.justice.gov/crt/pressroom/videos.php?group=3) - How To Avoid Unlawful Discrimination During The Automatic Extension Of TPS/DED EADs
(link: http://www.justice.gov/crt/about/osc/pdf/publications/TPS_DED.pdf) DOJ settles lawsuit with Hilton hotel over discrimination against foreign-born employee On March 9, 2015, the DOJ announced it reached a settlement with Hilton Worldwide, Inc. (Hilton), an international hotel chain, to resolve allegations that Hilton discriminated against a foreign-born worker. Under the settlement agreement, Hilton will pay the aggrieved worker $12,600 in lost wages, pay a $550 civil penalty to the U.S. government, change its employment policies and be subject to two (2) years of monitoring by the DOJ. According to the DOJ's press release, a Hilton-owned hotel in Naples, Florida discriminated against an asylee by improperly rejecting his Social Security card when the hotel reverified the asylee worker's employment authorization. Asylees are authorized to work because of their immigration status and can choose to present a List A (i.e., unexpired EAD or a Form I-94/Form I-94A indicating asylee status) or combination List B (i.e., driver license) and List C (i.e., unrestricted Social Security card) documents. Under the INA, employers cannot reject an employee's work authorization document because of the employee's citizenship, immigration status or national origin. When verifying or re-verifying a worker's employment authorization document, employers must allow workers to choose which documents to present from the List of Acceptable Documents (found on the Form I-9), and employers cannot reject documents that reasonably appear to be genuine and relate to the employee. According to the press release, the DOJ first learned of the unfair immigration-related employment practice when the worker contacted the OSC's worker hotline. By the time the DOJ and Hilton reached their settlement agreement, Hilton had rehired the worker who was harmed by the company's practices. Recommendations For California Employers Businesses should carefully review their policies, procedures, and expectations regarding the Form I-9 process and how to handle changes in employee immigration status to ensure compliance with both California and federal law. | 
