OSC Recommends Against Contractor Requiring Subcontractor’s Employees To Produce Original I-9 Documents

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded (PDF) to a query about whether a contractor can require employees of subcontractors to produce the original documentation they had used for

I-9 work authorization verification purposes for employment with the subcontractor.

The OSC did not delve into the specifics of the particular case in question, but said that in general, this type of scenario could present a number of problems. For example, the I-9 requirements note that an employer must review the documentation presented by an employee within three days of hire. If a general contractor were to ask the employee of a subcontractor to produce such documents a second time, given the passage of time that likely would have transpired, the employee may no longer have the documents originally presented. This could be the case because, for example, a document has expired and the employee now has a newer version; the employee has a different document due to adjustment of status and has forfeited the originally presented document; or the document was lost, stolen, or misplaced. If such an individual is then barred from employment, he or she may perceive that the general contractor and/or subcontractor has discriminated against him or her based on citizenship or immigration status. Because the proposed practice relates to the original I-9 verification process, such employees could allege discriminatory I-9 practices in violation of the antidiscrimination provisions of the law.