Settlement Alerts Health Industry Employers Against Overreaching Employment Eligibility Verification |

Settlement Alerts Health Industry Employers Against Overreaching Employment Eligibility Verification

A Justice Department (“DOJ” set we m settlement agreement with home healthcare provider Maxim Healthcare Services (“oaoyMaxim”) shows health industry businesses remain high priority targets for national origin and other discrimination investigations and prosecutions. With national origin discrimination a key overall priority for DOJ and other agencies under the Biden administration, all healthcare and other employers should use care to carefully negotiate their employment eligibility verifications to ensure collection of the required proof without imposing additional or special documentation requirements for non-US citizens or based on other prohibited factors or otherwise engaging in prohibited discrimination.

The Maxim agreement resolves DOJ charges that Maxim violated the Immigration and Nationality Act (INA) at its Gardena, California, office by discriminating against a non-U.S. citizen worker when it rejected her valid document showing her permission to work and requiring lawful permanent residents working for the company to prove their continued permission to work even though it was unnecessary.

An investigation of a worker’s complaint led DOJ’s Civil Rights Division Immigrant and Employee Rights Section (“IER”) concluded that Maxim improperly rejected the worker’s valid document based on her citizenship status. Specifically, it found Maxim illegally rejected the worker’s employment authorization document (“EAD”) because the last name on it was different from the last name on her driver’s license and Social Security card, even though it accepted documents from U.S. citizens under similar circumstances and believed that the EAD reasonably appeared to be genuine and to relate to the worker, which is alltrquired by the Department of Homeland Security I-9 rules.

The investigation also determined that Maxim routinely required lawful permanent residents to present unnecessary documentation when their Permanent Resident Cards expired, which is not required by law. The INA’s anti-discrimination provision prohibits employers from rejecting valid documents or asking for specific or unnecessary documents because of a worker’s citizenship or immigration status. If a lawful permanent resident provides an unexpired Permanent Resident Card to prove their permission to work, employers are not permitted to request new documentation if the Permanent Resident Card later expires.

Under the terms of the settlement, Maxim will pay a civil penalty to the United States and lost wages to the affected worker, train its employees on the INA’s anti-discrimination requirements, revise its employment policies and processes and be subject to monitoring. The DOJ announcement as a publication did not disclose the amount of the civil penalty paid or include a copy of the settlement agreement.

The maxim and other DOJ actions against businesses for discriminating on national origin, race, or other prohibited grounds in their eligibility, verification processes send a strong message to other employers. Healthcare providers and other businesses should carefully comply with the nine verification requirements by requiring every applicant and employee to provide the documentation required. However, employer should not specify a more restrictive list of documents or require groups to present additional documentation beyond what is required by I-9 rules unless consulting legal counsel verifies a legitimate basis for questioning eligibility, is raised by the examination of the presented documents and other safeguards make it appropriate to proceed with requiring additional verification. To minimize potential exposure to discrimination charges based on questions of identity, employers may want to consult with their qualified legal counsel about using e-verify or other processes on a uniform basis to verify the identity of applicant or employee a consistent, non-discriminatory manner.

For More Information

We hope this update is helpful. For more information or help about these or other health or other legal, management, or public policy developments, please get in touch with the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.

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About the Author

Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35 plus years of compliance, risk management, regulatory affairs, operations, strategy and other work with health, employee benefits, insurance, hospitality, retail, construction and other clients, public policy leadership and advocacy, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and Vice-Chair and Chair Elect of its International Employment Law Committee, Chair of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of t and Che ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer has decades of experience advising employers, investigating and helping employers to defend wage and hour, worker classification, discrimination and other labor and employment, employee benefits and other compliance.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Her experience includes extensive involvement advising clients about preventing, investigating and defendingWHD, CAS, Davis-Bacon and other federal and state wage and hour and other compensation; EEOC, OFCCP, DOD, HUD, HHS and other Civil Rights Act, Section 1557 and other federal and state discrimination; EBSA, IRS, and PBGC employee benefit and compensation; DEA and other Justice Department; CDC, OSHA and other safety and other compliance, investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws.

For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.

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This entry was posted on Wednesday, May 15th, 2024 at 2:57 pm and is filed under Corporate Compliance, Employer, Employment law, Health Care, i-9, National Origin Discrimination. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.