No Small Potatoes: Six Figure Settlement of Claims That Citizens and Lawful Permanent Residents Treated Differently

By Kathleen Jennings (kjj@wimlaw.com)

A recent settlement between potato processors in Washington State and the Department of Justice shows the consequences of treating lawful permanent residents differently than American born citizens. In the case of the potato processors, those consequences amounted to a $225,750 settlement of claims that they discriminated against immigrant workers when asking for work authorization proof. (U.S. v. Wash. Potato Co., DOJ OCAHO, settlement announced 5/17/17).

What caused the potato processors, Pasco Processing LLC and Washington Potato Co., to becomes targets of the discrimination claims? They required immigrant workers, but not U.S. citizens, to provide specific documentation to prove they are authorized to work in the U.S. when they completed their I-9 Forms.

According to an administrative complaint filed by the DOJ last November, 99.5 percent
of Pasco’s lawful permanent resident employees hired between November 2013 and October 2016 were required to provide “List A” documents to prove their identity and work authorization. Those documents, which include green cards, were submitted through E-Verify, an electronic government system that confirms work eligibility. In comparison, however, only 2.15 percent of U.S. citizen employees presented List A documents, the DOJ said. The DOJ asserted that the companies’ practices violated the Immigration and Nationality Act, which prohibits citizenship or national origin discrimination.

Pro Tip: It is illegal to discriminate against work-authorized individuals. Employers CANNOT specify which document(s) an employee may present to establish employment authorization and identity. Furthermore, the refusal to hire or continue an individual because the documentation presented has a future expiration date may also constitute illegal discrimination.

Wimberly Lawson can audit your company’s I-9 Forms to ensure that they are completed lawfully. Please contact Jim Wimberly at (404) 365-0900 or jww@wimlaw.com to set up an audit.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2017 Wimberly Lawson

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