Our Immigration Team inspects a Department of Justice investigation into how a staffing company asked for job applicants’ proof of permission to work in the United States.

• Employers cannot treat non-citizens differently from U.S. citizens when asking for documentation
• It is discrimination even when the suggestion is designed to “help” speed up verification
• Consider using an approved script when asking for the proper documentation

The Department of Justice (DOJ) announced a settlement agreement with California staffing agency Selective Personnel Inc. (SPI). The agreement resolves the DOJ’s determination that SPI’s predecessor business entity, South Bay Safety (SBS), violated the Immigration and Nationality Act (INA) by regularly discriminating against non-U.S. citizens when checking their permission to work in the United States.

After investigating, the Civil Rights Division’s Immigrant and Employee Rights Section (IER) concluded that between September 2020 and October 2022, SBS required non-U.S. citizens to present specific types of documentation reflecting their immigration status to prove their permission to work. In contrast, U.S. citizens could present any acceptable document of their choosing. IER concluded that SPI was a successor in interest to SBS and liable for the violations that IER found under INA Section 1324b.

Under the settlement, SPI will pay civil penalties to the United States, train its employees on the INA’s requirements, revise its employment policies, and be subject to departmental monitoring. As shared by the DOJ, “Employers cannot demand specific documents from workers because of their citizenship status when checking their permission to work,” said Assistant Attorney General Kristen Clarke of the Civil Rights Division. “The Civil Rights Division is committed to protecting workers from discriminatory practices that create unnecessary barriers to employment.”

Reminder: Asking or suggesting an applicant or employee present a certain document, even when done to “help” the applicant or employee or to speed up the employment verification (Form I-9/E-Verify) process, can result in a companywide DOJ investigation, which often leads to fines, settlements, and press releases.

Potential prevention: Consider using an approved script vetted by experienced counsel and train your hiring team for compliance.

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