On July 20, 2012, the Department of Justice (DOJ) announced a settlement agreement with United Natural Foods, Inc. (UNFI) over allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act (INA) by impermissibly re-verifying the work authorization of legal permanent residents and requiring certain non-citizen workers to present specific documentation during the Form I-9 completion process.

The case arose when a lawful permanent resident employee alleged that UNFI improperly terminated his employment after he failed to produce an unexpired Permanent Resident Card (“green card”) in connection with the company’s erroneous re-verification of his employment eligibility. The DOJ investigation revealed that the company improperly re-verified the work eligibility of other legal permanent residents when their work authorization documents expired but did not do so for U.S. citizens. The anti-discrimination provision of the INA, which is enforced by the DOJ’s Office of Special Counsel (OSC), prohibits the unequal treatment of employees during the employment eligibility verification and re-verification processes on account of citizenship or national origin.

In response to the investigation, UNFI conducted an internal audit and took corrective action to correct its employment eligibility verification and re-verification practices. In addition, the company rehired the employee who brought the claim and granted him full back pay prior to the government’s determination that discrimination had been committed. Under the terms of the settlement, UNFI has also agreed to pay $3,190 in civil penalties, conform its policies to ensure compliance with the INA’s anti-discrimination provision, and train human resources personnel about avoiding discrimination in the employment eligibility verification process.

The guidelines for penalties levied due to violations of the INA’s anti-discrimination provision are discussed in 8 U.S.C. § 1324(B), which provides, in relevant part, that individuals or entities who are found to have violated the statute must pay a civil penalty of not less than $250 and not more than $2,000 for each individual discriminated against; for individuals or entities with one previous offense, of not less than $2,000 and not more than $5,000 for each individual discriminated against; for individuals or entities with more than one previous offense, not less than $3,000 and not more than $10,000 for each individual discriminated against; and for one individuals or entities who are found to have engaged in discriminatory documentary practices subject to (a)(6) of this section, not less than $100 and not more than $1,000 for each individual discriminated against.

In addition, the rubric for penalties assessed in connection with Form I-9 audits conducted by Immigration and Customs Enforcement (ICE) may be found at: http://www.ice.gov/news/library/factsheets/i9-inspection.htm.