The Department of Justice (DOJ) recently announced a settlement with Brick & Bourbon, a Minnesota-based restaurant group, for violations of federal anti-discrimination laws in its employment eligibility verification practices. This case bears resemblance to previous DOJ settlements in which employees were asked for more or different documents during the employment eligibility process, such as the settlement with Great Dane LLC we recently spotlighted.  This Brick & Bourbon settlement and other recent DOJ settlements serve as a reminder of the basic requirements of the Immigration Reform and Control Act of 1986 (IRCA), including a prohibition against discrimination and unfair documentary practices. These cases also underscore the importance of adhering to the IRCA mandates and highlight the need for employers to ensure their processes are compliant. In light of the expected increase in enforcement under the incoming administration and their heightened focus on employment eligibility compliance, balancing a vigilant compliance regime while following the rules DOJ enforces may become more challenging for employers.

Overview of Immigration Reform and Control Act of 1986 (IRCA)

The Immigration Reform and Control Act (IRCA) is a U.S. law enacted in 1986 to address unlawful immigration and employment. It includes provisions to prevent employment discrimination based on national origin or citizenship status. IRCA outlines Form I-9 Employment Eligibility Verification requirements and requires employers to verify the identity and employment eligibility of all employees hired after November 6, 1986.  Under IRCA, employers must not engage in unfair documentary practices, such as requesting more or different documents than required, specifying certain documents, or rejecting valid documents based on citizenship, immigration status, or national origin. Ultimately, employers must treat all employees equally during the verification process.

What Went Wrong?

The DOJ’s Immigrant and Employee Rights Section (IER) found that Brick & Bourbon required lawful permanent residents and notably, not US Citizens, to provide additional, unnecessary documentation—such as a Social Security card—even after presenting valid Lawful Permanent Resident (LPR) cards. This practice violated the anti-discrimination provisions of the IRCA, which prohibit treating employees differently based on citizenship or immigration status.

These violations are a common misstep among employers, often arising from a misunderstanding of Form I-9 requirements. IRCA mandates that employees have the right to choose from a list of acceptable documents to prove their work authorization, and employers cannot impose additional requirements or selectively enforce rules based on citizenship status. While this case involved the requesting of additional documents, other settlements have spotlighted companies incorrectly requiring permanent resident to present LPR cards, when any valid List B and List C document should have sufficed.

In December of 2024 DOJ announced several settlements including allegations of unlawfully:

  • discrimination in hiring by restricting jobs, to U.S. citizens without any legal basis, deterring other protected individuals (such as lawful permanent residents, and those granted asylum or refugee status by the federal government) from applying from the job opportunity.
  • discriminating against lawful permanent residents by demanding specific, and sometimes unnecessary, documents when checking their permission to work.
  • refusing to hire certain non-U.S. citizens with permission to work and specifically refusing  to honor the Charging Party’s valid employment authorization document because of her citizenship status.
  • engaging in unfair documentary  practices by refusing to honor the valid document that the Charging Party presented during the I-9 process and by repeatedly requesting  that the Charging Party provide more and different documents than required by law to establish employment eligibility, based on the Charging Party’s citizenship status.

Settlement Terms

To resolve the allegations, Brick & Bourbon agreed to:

  • Civil Penalty: Pay $95,000 to the U.S. Treasury.
  • Training: Require anti-discrimination training for employees involved in hiring and Form I-9 processes, including an annual refresher and adhering to IER reporting requirements.
  • Policy Mandates: Create and/or revise employment verification policies to ensure compliance with the IRCA. Such policies will need to be reviewed and approved by IER.
  • Employee Communications: Post notices informing employees of their rights under federal anti-discrimination laws. Provide the List of Acceptable Documents in English and Spanish for employees (and provide an interpreter to assist with the Form I-9 process where necessary)
  • Monitoring and Reporting: Submit to DOJ oversight for a designated period, including providing copies of the Form I-9 and corresponding attachments for all individuals hired or reverified within the previous four-month period.

Why This Matters

This case is a reminder that employers are under increasing scrutiny regarding employment eligibility verification practices. The administration has prioritized compliance with Form I-9 and E-Verify rules, placing a spotlight on discriminatory practices that can lead to penalties, reputational harm, and corrective measures.

How Employers Can Avoid Violations

To avoid running afoul of the IRCA, employers should take proactive steps to ensure compliance:

  1. Understand Form I-9 Requirements: Employers must allow employees to select which valid documents they will present from the Lists of Acceptable Documents. Do not specify or request additional documentation beyond what is legally required. If your company has other requirements, such as requiring a copy of a Social Security Card for payroll purposes, or a driver’s license for certain positions, such requests should be made outside of the I-9 process, with a clear delineation apparent.
  2. Avoid Reverification Pitfalls: Do not reverify permanent residents when their Permanent Resident Card expires. Once work authorization is established, reverification is typically unnecessary unless explicitly required.
  3. Implement Anti-Discrimination Training: Train HR personnel and hiring managers on the anti-discrimination provisions of the IRCA. Understanding the law helps prevent unintentional violations. This training should augment baseline I-9 education and target topics such as E-Verify or identifying fraudulent documents where appropriate.
  4. Build a library of Resources: Review IER Fact Sheets including “Lawful Permanent Residents’ Employment Rights Under the Immigration and Nationality Act.
  5. Audit and Update Policies: Conduct regular internal audits of employment verification practices and policies and update procedures to reflect current laws and best practices. Audits of employment verification practices, as well as the company’s Form I-9s, should be done in connection with immigration compliance counsel.
  6. Stay Informed: Keep up with DOJ guidance and updates to ensure ongoing compliance. The heightened focus on employment eligibility compliance under the forthcoming administration makes this more critical than ever.

Balancing Compliance with Fairness

Employment eligibility verification is a basic requirement under IRCA, but it’s also an area where employers frequently stumble. A lack of understanding, overreach in document requests, or inconsistent application of policies can lead to serious consequences. The Brick & Bourbon case is a timely reminder that compliance is not just about avoiding penalties—it’s about fostering a workplace that respects employee rights.

For employers, now is the time to review hiring and verification practices, including anti-discrimination training, and stay ahead of potential pitfalls. With increased government oversight in this area, investing in compliance is both a legal obligation and a strategic business decision.

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.