My name is Sara-Daisy Dygert.
I'm the Outreach and Hotline Specialist for the Immigrant and Employee Rights Section in the Department of Justice's Civil Rights Division.
Our office is also known by our initials, "IER."
We used to be called the "Office of Special Counsel for Immigration-Related Unfair Employment Practices," or "OSC."
The goal of this on-demand webinar is to cover recent changes to IER's regulations and what these changes mean for the public
I'll also discuss resources that can help you learn more about IER's work and the law that we enforce.
Here is an overview of today's presentation.
First, I'll go briefly over the types of discrimination that are illegal under the law the IER enforces.
Then, I'll talk about the recent changes to our regulations and explain what they mean for the public.
Finally, I'll point you to additional resources that are available to you.
For those of you unfamiliar with our office, IER enforces a part of the Immigration and Nationality Act, also known as the "INA."
Congress passed the law IER enforces in 1986. In the same law, Congress prohibited companies from knowingly employing people who lacked permission to work.
Congress also required employers to verify their employees' employment authorization through what we now know as the Form I-9.
However, Congress feared that employers may discriminate against foreign-born workers,
so it included discrimination protections based on citizenship status or national origin.
Congress created IER as the office that would enforce this anti-discrimination law.
The law that IER enforces prohibits four types of conduct:
I'll give an overview of each.
For more information about IER's work and the law that we enforce, you can sign up for a free webinar through our website.
The first type of employment discrimination that IER investigates is citizenship or immigration status discrimination.
This occurs when an employer treats people differently based on their citizenship or immigration status in the process of hiring, firing,
recruitment, or referral for a fee.
A common example of citizenship status
discrimination is when an employer has a policy of only hiring U.S. citizens.
This is generally illegal because it excludes other workers who are protected by this law,
such as lawful permanent residents, asylees, and refugees.
Employers can only limit their hiring to U.S. citizens if they are required or permitted to do so under law,
regulation, government contract, or executive order.
Another example of citizenship or immigration status discrimination
would be if an employer preferred to hire guest workers and did not consider applications from U.S. workers.
The second type of employment discrimination that IER investigates is national origin discrimination.
This occurs if an employer treats people differently based on their actual or perceived national origin in hiring, firing,
recruitment, or referral for a fee.
National origin can refer to a number of things, such as the country someone is from or the country an individual's ancestors are from.
National origin discrimination can also include discrimination
based on characteristics associated with birth or ancestry from another country, such as a foreign language accent,
clothing, or perceptions about national origin based on a person's name.
These are just examples.
Employers with four to fourteen workers are covered by this part of the law.
Another federal agency, the Equal Employment Opportunity Commission,
often referred to as the "EEOC,"
investigates national origin discrimination claims against employers with fifteen or more workers.
The third type of employment discrimination that IER investigates generally occurs during the Form I-9 and the E-Verify processes.
This discrimination is called "unfair documentary practices." During the employment eligibility verification
process, employers may not ask for more documents, limit the documents a person can show to establish
permission to work, or reject a valid document based on a worker's citizenship/immigration status or national origin.
This means that employers must follow the rules consistently.
For example, allowing U.S. citizens the full ability to choose which documents to present for the Form I-9,
such as a driver's license and an unrestricted Social Security card,
but requiring non-U.S. citizens to present an immigration document, like a permanent resident card, would be discriminatory.
Employers with more than three workers are covered by this part of the law.
Generally, workers with permission to work in the United States are protected from discrimination under the law that IER enforces.
For some types of discrimination based on citizenship status, only U.S.
citizens, U.S. nationals, recent Lawful Permanent Residents, asylees, and
refugees are protected. If you have questions about this, you can call IER.
The fourth type of prohibited conduct is retaliation or intimidation.
It is illegal to take action against someone, for example,
intimidate them or retaliate against them, for actions that are protected by the law IER enforces.
Examples of protected actions include filing a charge with IER,
cooperating during an IER investigation, seeking assistance from IER through our hotline, or challenging
what a worker believes to be violations of the law IER enforces.
I mentioned earlier that IER offers free webinars for employers and workers, or their advocates, on rights and
responsibilities under the law that IER enforces.
These webinars go into greater detail about the law, as well as best practices for the Form I-9 and E-Verify processes.
You can go to www.justice.gov/ier for more information and to sign up for a webinar.
Now that I've reviewed the basics of the law, I'll get into our main topic today: the regulations.
The regulations we're discussing today implement
the law that IER enforces. IER updated our regulations recently because this law was last amended in
1996, but the regulations had not been updated to reflect the changes.
The final rule revising these regulations was published on December 19th, 2016,
and went into effect on January 18th, 2017.
DOJ is committed to training the public on changes to the regulations and is doing so through webinar training, such as
today's on-demand webinar.
For those of you who are already familiar with IER's work,
you'll see that the changes to regulations on the whole reflect IER's long-standing positions.
For those of you who want to look at the regulations themselves this slide provides the citations.
The proposed and final rules were published in the Federal Register.
The proposed rule explains each of the changes we proposed at that time and why we were making those changes.
Now I'll discuss the changes to the regulations.
The changes to IER's regulations are summarized here, and I'll discuss each in more detail. We'll talk about the office name change,
conforming to statutory language,
definitions, charge filing and processing,
investigations, and technical changes.
The first change I'll discuss is a revision to reflect our offices new name, the Immigrant and Employee Rights Section.
Our old name, the "Office of Special Counsel for Immigration-Related Unfair Employment Practices,"
overlapped with the name of a separate federal agency, called the "Office of Special Counsel," which caused confusion.
The office's mission remains the same and the name change should eliminate confusion
with having two separate "Offices of Special Counsel" in the U.S. government.
Our new website is listed on this slide, and the new Spanish Website is
www.justice.gov/crt-espanol-ier.
Note that any documents containing our prior office name remain valid.
One benefit to the new regulations is that the public now has a central place to learn what discrimination means under the law that IER
enforces based on the statutory language,
applicable case law, and IER's long-standing positions.
First, I'll discuss "unfair documentary practices."
Since 1996, claims of "unfair documentary practices," which have also been referred to as "document abuse,"
require a showing of discriminatory intent.
Meaning, that a person or entity
treated an individual differently based on the individual's citizenship, immigration
status, or national origin.
Case law and agency guidance have included the intent requirement
since the law was amended in 1996, and the regulations now reflect this requirement.
The revisions also clarify that people do not need to have lost work for an unfair documentary practice to have occurred.
The revisions to the regulations are consistent with the statutory language,
IER's long-standing position, and case law by the Office of the Chief Administrative Hearing Officer, or "OCAHO," which is the administrative tribunal that hears cases under the law IER enforces.
The revisions to the regulations also clarifies the timeframes for IER to bring a complaint in court
based on a charge or independent investigation.
First, the revisions clarified that IER is not bound by the time limit on filing a complaint that
Charging Parties have to file a lawsuit.
The regulations make clear that while IER may file its own lawsuit during a 90-day period, that individuals have to file a complaint
after getting a right to sue letter from IER.
IER may also file a lawsuit at a later time.
This is consistent with relevant
OCAHO decisions interpreting the law, as well as the Supreme Court's interpretation of a similar provision in Title VII.
Second, the revisions
clarified that the law does not impose a complaint filing deadline on IER for bringing complaints based on an
independent investigation.
IER can open an investigation on its own initiative, in addition to opening
investigations in response to receiving a charge.
Under the revised regulations, IER may file a complaint as long as IER opens an independent investigation within
180 days of when IER has a reasonable cause to believe that a violation occurred.
Similar to the EEOC, IER is bound by equitable limits on the filing of a complaint.
There is no change to the requirement that Charging Parties must file a complaint with OCAHO within 90 days of receiving the IER right to sue letter.
Also, IER does not anticipate any significant changes to the speed with which it handles its investigations.
The revisions to IER's regulations included making changes to existing
definitions in the regulations and adding new definitions.
Case law developments, in the more than 20 years since the regulations were last amended, have meant that these definitions needed to be revised.
The regulations also have newly added definitions. For those of you who are familiar with IER's long-standing
practices, you'll see that none of the definitions change existing rights and obligations under the law.
They simply create a central place for information about what constitutes discrimination under the law.
The final rule revises several definitions already found in IER's regulations. For example,
revisions to the definition of a "charge" removed
information on a non-U.S. citizen's immigration status that is not required to determine whether IER has jurisdiction to investigate.
The revised definition also ensures that a charge form can be treated as a filed charge, even if the form is incomplete,
so long as it provides sufficient information to determine IER's jurisdiction.
The revised definition also codifies the long-standing practice of accepting charges in any language.
In addition, the revised definition of "Charging Party" simplifies the regulatory text and makes clear that
organizations may file a charge on behalf of injured parties.
The revised definition also clarifies that DHS may file charges,
and includes changes to more closely track the statutory language.
The final rule also added several new definitions.
The proposed rule discusses each of the new definitions which were added to conform the regulations to statutory text,
avoid confusion, and reflect long-standing civil rights law and IER's long-held positions.
The Department received many comments to the definition of "discriminate" and a related definition,
so we wanted to briefly discuss the topic which we also addressed at length in the proposed rule and final rule.
These definitions reflect longstanding black letter civil rights law and IER's long-held positions on what constitutes
intentional discrimination under the law that IER enforces.
They clarified that discrimination means "the act of intentionally treating an individual differently based on the person's
citizenship status or national origin,
regardless of the explanation for the discrimination and regardless of whether it is because of animus or hostility.
The Department made changes to the definition of "discriminate" in the final rule to address any confusion about this term.
However, the definition makes no change to IER's longstanding positions, based on and supported by relevant case law.
In addition to these changes related to the regulations' definitions,
the revised regulations reflect and update the process for filing a charge with IER and IER's internal processes used for handling charges.
The proposed rulemaking explained each of the changes and the reason behind the revisions.
For example, the regulations now reflect that members of the public can file charges
electronically, by email, fax, or mail. As also mentioned earlier, Charging Parties are still required to file a charge within
180 days of the alleged discrimination.
In addition to updating the processing of charges, the revisions also address the handling of submissions that don't meet the definition of a "charge" when filed.
This prevents IER from having to investigate claims that clearly fall outside of our jurisdiction,
while still ensuring that charges that may be missing some information can still be considered timely.
The prior and current regulations allow Charging Parties a 45-day grace period to provide requested additional
information to IER to determine if the submission should be considered a charge.
So under the regulations, inadequate submissions can be deemed charges if additional information is received within
180 days of an alleged violation,
or within 45 days of IER's request for more information.
IER also has discretion to treat an inadequate submission as a charge and obtain additional information during the investigation.
Another part of the regulations requires IER to dismiss charges filed more than
180 days after the alleged violations unless IER determines that the principles of waiver,
estoppel, or equitable tolling apply.
As described in the final rule, IER will apply these principles sparingly.
The revised regulations also address IER investigations. For example,
they describe more broadly the methods that IER can use to investigate possible violations,
including the authority to seek information,
request documents and answers to interrogatories,
inspect premises, and solicit testimony.
The revisions broaden the list of items that an entity or person must permit IER to access during an investigation.
These include items such as books, records, accounts, papers,
electronic and digital documents, databases,
systems of records, witnesses, and premises.
The revisions also incorporate IER's independent authority under a different part of the law to inspect Forms I-9.
The revisions also discuss Respondent's preservation obligations when subject to an IER investigation.
Such applications are necessary to ensure that IER's right to access and examine evidence is preserved.
Some of the changes to the regulations are technical, such as replacing references to the Immigration and
Naturalization Services, or "INS," which no longer exists, and removing outdated address information for IER.
Now I'll touch on what those changes mean for the public.
There are no changes to employers' existing obligations, or workers' rights under statute and case law.
Employers may wish to review their legal obligations and revise EEO policies as appropriate,
and employers with existing policies covering
274 B may wish to review and update any references to "OSC" to reflect the office's new name and website.
Finally, workers and advocates may wish to review their rights under the law.
Some of you may already be familiar with the hotlines that we mentioned earlier. These hotlines still operate in the same way.
We encourage you to call our employer or worker hotline if you have any questions about the law that IER enforces.
Calls can be anonymous and in any language.
In addition to calling our hotline, you can visit our website to enroll in another free IER webinar,
download educational materials, and to learn more about IER's work.
You can also email us at ier@usdoj.gov.
But please call our hotlines if you need immediate assistance.
You can also call to request hard copies of the materials you'll see on our website. Thank you so much for your participation today.
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