On November 25, 2024, the U.S. Department of Justice (DOJ) announced a settlement with Great Dane LLC (Great Dane), a trailer manufacturing company, over allegations of discriminatory hiring practices against non-U.S. citizens. The DOJ’s Immigrant and Employee Rights Section (IER) alleged that Great Dane’s Wayne, Nebraska plant committed a pattern or practice of unfair documentary practices and citizenship or immigration status discrimination in hiring, during the employment eligibility verification (EEV) Form I-9 process. This case underscores the importance for employers to understand and adhere strictly to anti-discrimination laws during hiring and verification procedures.

Background of the Complaint

The investigation began with a charge filed on September 27, 2022, alleging that Great Dane’s Wayne plant required non-U.S. citizens to provide additional and unnecessary documents, and/or unnecessary information from those documents, to prove their work authorization. IER’s investigation revealed that the company engaged in unfair documentary practices, including:

  1. Requesting Unnecessary Documents: Non-U.S. citizens were asked to provide additional or specific documentation beyond what was legally required during the Form I-9 and E-Verify processes, violating 8 U.S.C. § 1324b(a)(6).
  2. Improper Reverification: Great Dane unlawfully required lawful permanent residents to reverify their Permanent Resident Cards or List B identification documents, also violating 8 U.S.C. § 1324b(a)(6).
  3. Discriminatory Hiring Practices: The company failed to hire non-U.S. citizens who were unable to comply with its unlawful documentation requests, violating 8 U.S.C. § 1324b(a)(1).

According to the press release, the Charging Party who filed the initial complaint provided “sufficient information and documents to prove his permission to work — his state ID and unrestricted Social Security card — the company nevertheless wanted him to provide additional information from a Permanent Resident Card.” Great Dane’s refusal to accept valid documentation and subsequent hiring triggered the DOJ investigation.

Summary of the Settlement Agreement

To resolve these allegations, Great Dane agreed to a robust settlement with substantial corrective measures aimed at remedying past practices and ensuring compliance going forward:

  • Civil Penalty: Payment of $218,000 to the U.S. Treasury.
  • Back Pay Fund: Creation of a $218,000 fund to compensate individuals who suffered economic harm due to the company’s practices between January 1, 2021, and October 1, 2023.
  • Corrective Actions:
    • Revising hiring and verification policies to align with federal anti-discrimination laws.
    • Implementing mandatory anti-discrimination training for employees involved in the hiring process.
    • Providing IER with access to records and ongoing monitoring for two years.

The full settlement agreement details these obligations and the company’s commitment to compliance as well as a process to:

  1.  Identify Affected Individuals:
    • Great Dane must identify and notify potential claimants based on specific criteria (outlined below).
    • Final decisions on eligibility and compensation amounts will be made by IER, and payments will be issued within specified timelines.
  2. Training and Policy Changes: The company is required to revise hiring and verification policies, provide anti-discrimination training for staff, and comply with monitoring by IER.
  3. Communication Oversight: All communications with affected individuals regarding the settlement must be approved by IER in advance.

Who Are the Affected Individuals?

The settlement identifies several categories of individuals who may be entitled to compensation from the back pay fund:

  1. Rejected Applicants:
    • Non-U.S. citizens or individuals perceived as such who were work-authorized but had their valid Form I-9 documentation improperly rejected during the hiring process.
    • This includes individuals who attempted to present valid documents to establish employment authorization.
  2. Delayed Hires:
    • Individuals whose onboarding was delayed because of Great Dane’s unnecessary document requests, including:
      • Those who completed Section 1 of Form I-9 but were prevented from completing Section 2.
      • Those associated with an E-Verify case but not onboarded within two weeks of the E-Verify case.
  3. Terminated Employees:
    • Employees who lost their jobs or were removed from payroll because Great Dane incorrectly required them to reverify expired documents, including Permanent Resident Cards or List B ID’s.
  4. Potential Claimants:
    • Any lawful permanent residents or work-authorized non-U.S. citizens who were unable to begin or continue employment due to the company’s unnecessary document practices during the settlement’s relevant period.

New Fact Sheet for Lawful Permanent Residents

As part of the settlement, IER released a Fact Sheet titled “Lawful Permanent Residents’ Employment Rights Under the Immigration and Nationality Act.” This document serves as a vital resource for employees and employers, outlining key protections for lawful permanent residents, including:

  1. Employers cannot request specific documents for work authorization verification.
  2. Reverification of expired Permanent Resident Cards is unnecessary and unlawful.
  3. Discrimination in hiring, firing, or recruitment based on citizenship or immigration status is strictly prohibited.

Employers should familiarize themselves with this fact sheet and incorporate it into their compliance and training materials.

Guidance for Employers to Avoid IER Scrutiny

This case underscores the risks of unlawful hiring and employment verification practices, specifically regarding Form I-9 and E-Verify. To prevent discriminatory practices and avoid IER scrutiny, employers should:

  1. Follow Form I-9 and E-Verify Guidelines: Allow employees to choose valid documents from the List of Acceptable Document without requesting specific or additional forms of proof.
  2. Avoid Unnecessary Reverification: Do not reverify Permanent Resident Cards upon expiration. Once work authorization is verified, reverification is generally unnecessary unless the employee’s work authorization has a defined expiration (ex: EAD Card).
  3. Provide Anti-Discrimination Training: Regularly train HR personnel and hiring managers on anti-discrimination laws and proper verification procedures.
  4. Implement Non-Discriminatory Policies: Develop SOPs and enforce policies that prohibit discrimination based on citizenship status or national origin in all employment practices.
  5. Stay Informed: Monitor updates from IER and other related agencies to ensure ongoing compliance with employment laws.

Final Thoughts

The Great Dane settlement serves as a powerful reminder for employers to regularly review and evaluation their hiring practices. Failure to implement proper verification processes can lead to significant penalties, reputational harm, and onerous corrective actions.

IER investigations can be triggered by a single complaint, even in the absence of evidence of a pattern of discrimination, let alone animus. To decrease potential exposure, companies should routinely assess their hiring processes and Form I-9 standard operating protocols to ensure compliance with the anti-discrimination provision of the INA and the rules enforced by Homeland Security Investigations.  These areas are slated to receive heightened scrutiny under the new administration, underscoring the importance of proactive compliance efforts.

For more information relating to Form I-9 or E-Verify compliance, internal immigration assessments, worksite enforcement audits, Department of Labor immigration-related wage and hour investigations, general H-1B compliance, and other DOJ-IER anti-discrimination matters including foreign sponsorship and export control/ITAR issues, please contact the Seyfarth Immigration Compliance and Enforcement group, or the author, Dawn Lurie, directly at dlurie@seyfarth.com.