The recent settlement agreement between the Department of Justice and SP Plus Corporation, a Chicago based transportation and parking management company, serves as a critical reminder for employers of their responsibilities under U.S. immigration and anti-discrimination laws. The settlement highlights the potential pitfalls employers may encounter when handling employment verification, particularly for individuals with Temporary Protected Status (TPS).
The Investigation at a Glance
The Justice Department’s Civil Rights Division, Immigrant and Employee Rights Section (IER) section initiated an investigation following a charge filed in August of 2023. The charge alleged that SP Plus discriminated against a worker based on her national origin by rejecting a facially valid Employment Authorization Document (EAD). The worker was granted Temporary Protected Status (TPS) associated with Haiti, and accordingly, had been issued an EAD with a TPS category (A12 or C19). Although the worker’s EAD had been automatically extended by the United States Citizenship and Immigration Service (USCIS) until June 30, 2024, SP Plus rejected it because of confusion regarding the employee’s country of birth, which was listed as the Bahamas.
By way of background, the Secretary of Homeland Security can designate a foreign country for TPS when conditions in that country temporarily prevent its nationals from safely returning, or when the country is unable to adequately manage their return (e.g., natural disasters, war, etc.). USCIS may grant TPS to eligible nationals from these designated countries (or regions) who are already in the United States. Individuals without a designated country’s nationality but who last lived in a designated country may also qualify for TPS.
The Immigration and Nationality Act (INA) prohibits discrimination based on citizenship or national origin in the employment verification process. This includes rejecting valid documents or requesting unnecessary documentation. In this case, SP Plus was found to have failed to follow the federal instructions for recognizing extended EADs, leading to an unlawful rejection of the employee’s work authorization based on her national origin.
Admittedly, navigating I-9 verification requirements for TPS can be particularly tricky for employers. While the EAD lists the beneficiary’s country of birth, the key detail employers must focus on is the TPS category code—A12 or C19. This can be counterintuitive, as the country of birth does not need to match a TPS-designated country for the individual to be work-authorized. Instead, employers must identify the TPS code and then, for auto extensions, consult USCIS guidance based on the EAD’s expiration date. In some cases, it may even be necessary to query the associated country to verify eligibility. EADs issued to nationals of countries not designated for TPS are rare, adding to the confusion. IER confirms in their press release Instructions on how an employer can determine if an Employment Authorization Document has been extended by the federal government direct employers to look at the document’s category code and date of expiration. While not referred to in the M-274, USCIS has suggested that employers visit and bookmark https://www.uscis.gov/eadautoextend [uscis.gov], which contains a redesigned, more robust calculator that will assist in making auto extension determinations going forward. In this author’s opinion, while the calculator is appreciated, the guidance remains confusing and places a difficult burden on employers, who are expected to decipher complex rules that often feel buried in the fine print.
Settlement Terms: A Learning Opportunity for Employers
Under the terms of the settlement, SP Plus agreed to a series of corrective actions. These actions are important for all employers to note, as they reflect the government’s expectations for compliance in similar cases:
1. Civil Penalty and Compensation: SP Plus will pay a civil penalty of $2,000 to the U.S. Treasury and provide back pay of $3,668.63 to the affected employee. The company is also required to offer her reinstatement to the job with the same conditions she would have had, had the incident not occurred.
2. Training and Policy Revision: SP Plus must create or revise polices and training materials that include information on how to properly handle EADs and other work authorization documents. Any revisions after initial approval need to be passed by IER prior to implementation. Additionally, all relevant staff must attend a free IER-based webinar on the anti-discrimination provisions of the INA. Completion of this training must be tracked and shared with the Department of Justice for compliance within 120 days of the effective date of the settlement. Any new Recruiting Personnel will also be required to attend a training.
3. Ongoing Monitoring and Reporting: SP Plus will be subject to departmental monitoring for two years.
Notably any failure to comply with such agreements can lead to additional investigations or penalties. It’s crucial to also emphasize that this case did not involve a pattern or practice of discrimination but rather a single, isolated incident with one employee. However, the settlement still imposes significant obligations on SP Plus, including strict monitoring and compliance measures by IER. This highlights how even a single error can lead to serious consequences, with the agreement focused on preventing future violations through rigorous oversight and adherence to compliance protocols.
Employer Take Aways
This case underscores the importance of adhering to guidelines when verifying employee work authorization. It can be easy to misinterpret documentation or make assumptions based on an employee’s citizenship status or national origin, but such actions can lead to legal trouble, as seen in the SP Plus case. For employers, the key takeaway is to follow official instructions precisely and avoid making assumptions about a worker’s status based on their appearance or nationality. Moreover, proactive measures such as staff training and clear, compliant policies are critical to preventing similar issues.
Moving Forward: Best Practices for Employers
Employers should take the following steps to ensure compliance with the INA and avoid similar missteps:
1. Review and Revise Policies: Regularly update employment verification policies to ensure they reflect current federal guidelines, especially regarding the complex TPS and EAD extensions (where cards may be facially expired but automatically extended). Look for other low hanging fruit and related opportunities for improvement (e.g., are your I-9 folks incorrectly reverifying expired permanent resident cards (PRC), incorrectly forcing green card holders to present PRCs, incorrectly rejecting Social Security cards for refugees/asylees based on their status?).
2. Train Employees: Ensure all personnel involved in recruitment, hiring, and onboarding are well-trained in handling employment documents, focusing on avoiding unnecessary documentation requests. Review the free IER webinar offerings here. Remember, employers must not request more documents than necessary or specify which types of documents they are willing to accept. This principle is central to avoiding discriminatory practices.
3. Monitor Compliance: Implement a system for continuous compliance monitoring, including regular audits of hiring practices and employment verification procedures. Hire seasoned compliance counsel to set this up for you.
4. Seek Guidance: When in doubt, seek advice from legal counsel or utilize resources such as the IER Employer/HR Representative webinars to ensure proper understanding and execution of document verification processes. Our office routinely submits blind queries to the IER Intervention Hotline on behalf of employers.
5. Be Responsive: It is crucial to respond promptly and thoughtfully to queries or concerns from IER, employees, or third parties regarding immigration-related employment matters. IER’s telephone intervention program offers an alternative dispute resolution mechanism. By engaging with IER’s staff through the hotline, employers and workers can resolve potential disputes informally and quickly. Timely and thoughtful responses to these interventions, and other complaints helps avoid prolonged disputes, ensures compliance, and reduces the risk of investigations or litigation.
6. Consider Electronic I-9 Vendors with Smart Technology: Employers should explore partnering with electronic I-9 vendors that offer smart technology, including workflows and “help text” pop-ups, which can guide HR teams through the I-9 process. These tools may help ensure compliance by flagging issues like automatic EAD extensions, reducing the risk of incorrectly rejecting work-authorized individuals. However, implementing such systems cannot always prevent issues. It is difficult to say whether a system could have assisted in the SP Plus situation, where the proper handling of an extremely specific TPS EAD was misunderstood.
The SP Plus settlement underscores a critical lesson for businesses: minor missteps, often stemming from lesser-known guidance, can result in major issues. It is a reminder that careful attention to compliance details is essential to avoid costly consequences.
