81 FR 91768 - Standards and Procedures for the Enforcement of the Immigration and Nationality Act
DEPARTMENT OF JUSTICE Federal Register Volume 81, Issue 243 (December 19, 2016)
Federal Register Volume 81, Issue 243 (December 19, 2016)
| Page Range | 91768-91792 | |
| FR Document | 2016-30491 |
[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)] [Rules and Regulations] [Pages 91768-91792] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-30491] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE 28 CFR Parts 0 and 44 [CRT Docket No. 130; AG Order No. 3791-2016 No. RIN 1190-AA71] Standards and Procedures for the Enforcement of the Immigration and Nationality Act AGENCY: Civil Rights Division, Department of Justice. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This rule revises the Department of Justice's (Department's) regulations implementing a section of the Immigration and Nationality Act (INA) concerning unfair immigration-related employment practices. The revisions conform the regulations to the statutory text as amended, simplify and add definitions of statutory terms, update and clarify the procedures for filing and processing charges of discrimination, ensure effective investigations of unfair immigration-related employment practices, reflect developments in nondiscrimination jurisprudence, reflect changes in existing practices (e.g., electronic filing of charges), reflect the new name of the office within the Department charged with enforcing this statute, and replace outdated references. DATES: This rule is effective on January 18, 2017. FOR FURTHER INFORMATION CONTACT: Alberto Ruisanchez, Deputy Special Counsel, Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue [[Page 91769]] NW., Washington, DC 20530, (202) 616-5594 (voice) or (800) 237-2515 (TTY); or Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 353-9338 (voice) or (800) 237-2515 (TTY). SUPPLEMENTARY INFORMATION: Executive Summary The anti-discrimination provision of the Immigration and Nationality Act (INA), section 274B, codified at 8 U.S.C. 1324b, was enacted by Congress as part of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, to prohibit certain unfair immigration-related employment practices. Congress provided for the appointment of a Special Counsel for Immigration-Related Unfair Employment Practices (Special Counsel) to enforce this provision. Congress has amended 8 U.S.C. 1324b several times. On November 29, 1990, by section 535 of the Immigration Act of 1990, Public Law 101- 649, Congress added a new subsection (a)(6) prohibiting covered entities from requesting more or different documents or rejecting valid documents during the employment eligibility verification process. See 8 U.S.C. 1324b(a)(6) (1994). On September 30, 1996, by section 421 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, div. C, Congress further amended that provision by providing that unfair documentary practices were unlawful only if done ``for the purpose or with the intent of discriminating against an individual in violation of'' 8 U.S.C. 1324b(a)(1). See 8 U.S.C. 1324b(a)(6) (2000). The Department has not updated the set of regulations implementing section 1324b, 28 CFR part 44, to reflect the statutory text as amended by IIRIRA. The revisions promulgated by this final rule apply to the Special Counsel's investigations and to cases adjudicated under section 1324b. The revisions to 28 CFR part 44 incorporate the intent requirement contained in the amended statute, and also change the regulatory provisions regarding the Special Counsel's investigation of unfair immigration-related employment practices. Specifically, the revisions update the ways in which charges of discrimination can be filed, clarify the procedures for processing such charges, and conform the regulations to the statutory text to clarify the timeframes within which the Special Counsel may file a complaint with the Office of the Chief Administrative Hearing Officer (OCAHO). The revisions also simplify the definitions of certain statutory terms and define additional statutory terms to clarify the full extent of the prohibitions against unfair immigration-related employment practices and to eliminate ambiguities in the regulatory text. Additionally, the revisions codify the Special Counsel's existing authority to seek and ensure the preservation of evidence during investigations of alleged unfair immigration-related employment practices. The revisions also replace references to the former Immigration and Naturalization Service with references to the Department of Homeland Security (DHS), where applicable, in accordance with the Homeland Security Act of 2002, Public Law 107-296 (HSA). Finally, the revisions reflect the change in the name of the office within the Department's Civil Rights Division that enforces the anti- discrimination provision, from the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) to the Immigrant and Employee Rights Section. Summary of Changes to the Final Rule The Department carefully considered the 47 individually-submitted comments received in response to the Notice of Proposed Rulemaking (NPRM) entitled Standards and Procedures for the Enforcement of the INA that was published in the Federal Register on August 15, 2016 (81 FR 53965). Following several commenters' requests for an extension of the original 30-day comment period, on September 14, 2016, the Department extended the comment period by an additional 30 days, for a total of 60 days (81 FR 63155). The comment period closed on October 14, 2016. After consideration of the comments, the Department is making four changes: One change to the definition of ``discriminate'' at Sec. 44.101(e) to make clear that intent to discriminate must be based on national origin or citizenship status in order to violate 8 U.S.C. 1324b; one change to Sec. 44.101(k)(3) to make the regulatory language mirror the statutory language; one change to Sec. 44.200(a)(3)(ii) to clarify the cross reference in that paragraph; and one technical change to Sec. 44.300(d) to correct the citation to Title VII of the Civil Rights Act of 1964, as amended. Background on Legal Authority The authority to promulgate this rule lies in two sections of the INA. See 8 U.S.C. 1103, 1324b. By statute, the Special Counsel serves in the Department and enforces the anti-discrimination provision of the INA. 8 U.S.C. 1324b(c). The INA lays out the Attorney General's authority to administer and enforce those laws within Title 8, United States Code, that are conferred upon the Attorney General. 8 U.S.C. 1103(a)(1). In addition to the Attorney General's authority to administer and enforce laws expressly conferred to the Attorney General under the INA, ``determination and ruling by the Attorney General with respect to all questions of law shall be controlling.'' Id. The same section of the INA authorizes the Attorney General to ``establish such regulations . . ., delegate such authority, and perform such other acts as the Attorney General determines to be necessary for carrying out this section.'' 8 U.S.C. 1103(g)(2); see also Homeland Security Act of 2002, Public Law 107-296, sec. 1102 (adding ``(g)'' as a ``subsection'' of section 1103); Cormia v. Home Care Giver Servs., Inc., 10 OCAHO no. 1160, 3 (2012) (noting that ``Congress gave the Attorney General the power to promulgate regulations to effectuate and enforce Sec. 1324b, as well as the power to delegate that authority'') (citing 8 U.S.C. 1103(g)). In addition to the broad grant of authority to the Attorney General under 8 U.S.C. 1103, the anti-discrimination provision itself includes express delegations of rulemaking and other authorities to the Attorney General. See, e.g., 8 U.S.C. 1324b(c)(4) (to establish regional offices); 8 U.S.C. 1324b(f)(2) (to ensure that administrative law judges hearing cases under the statute and the Special Counsel have ``reasonable access'' to examine evidence of persons or entities being investigated); cf. 8 U.S.C. 1324b(b)(1) (providing that charges ``shall contain such information as the Attorney General requires''); 8 U.S.C. 1324b(e)(2) (providing that the Attorney General shall designate the administrative law judges who consider cases under section 1324b). Discussion of Comments The following section reviews comments the Department received in response to the NPRM and sets forth the Department's responses to those comments. The Department received 47 comments on the NPRM by the close of the comment period, October 14, 2016. The Department's responses to comments regarding this rule's economic impact are included in the Regulatory Procedures section of this rule. Other comments are summarized below, along with the Department's responses. General Comments Issue: Five commenters express support for the proposed rule, in whole [[Page 91770]] or in part. One commenter ``strongly supports the entirety of the Department's proposed rulemaking.'' Another commenter states that its employer members ``generally support those sections of the proposed rule that will clarify existing investigation and enforcement procedures for the Special Counsel and update existing language to reflect statutory changes.'' Response: The Department acknowledges these expressions of support. Issue: The Department received one comment two days before the close of the comment period requesting an extension of the comment period ``until executive and legislative positions are filled in 2017.'' Response: The Department declines to grant the request made through this comment. The Department has provided a 60-day comment period, which is reasonable and appropriate. The Department has reviewed all comments carefully and sees no reason to delay the publication of this rule. Issue: A number of commenters ask the Department not to promulgate the rule based on various concerns. The Department is addressing the specific concerns raised by these commenters below, by subject. Response: The Department addresses below the specific concerns that these commenters raise. The Department will make this rule final as proposed with four changes. Issue: One commenter asks the Department not to promulgate the rule on the basis that it is ``ultra vires to the rule making authority and functions vested in the [Attorney General] and OSC by Congress.'' This commenter cites to 8 U.S.C. 1103(g)(1) to support the commenter's position that the Attorney General is limited to promulgating substantive rules under the INA relating only to the functions of the Executive Office for Immigration Review, another component within the Department. Based on that reading, this commenter claims that the Attorney General and Special Counsel lack the authority to issue rules ``with regard to the interpretation and enforcement of the immigration- related anti-discrimination provisions of INA Sec. 274B.'' This commenter also claims that the Attorney General and the Special Counsel lack the authority ``to regulate standards governing the order and burden of proof to be applied by administrative law judges (ALJs) and the courts for the purpose of evaluating claims of citizenship or national origin discrimination, or document abuse.'' This commenter points to the fact that the Attorney General and the Special Counsel have ``refrain[ed] for 30 years from issuing rules regarding the burden and standard of proof governing claims of discrimination under INA Sec. 274B'' as an implicit recognition that ``these adjudicative functions lie exclusively with OCAHO administrative law judges.'' Another commenter describes the NPRM as an ``unlawful, ultra vires, expansion of DOJ OSC power.'' Response: The Department disagrees with these comments and has decided that it will promulgate this rule. As discussed in the Background on Legal Authority section above, the Attorney General has the authority to promulgate this rule. While one commenter believes that 8 U.S.C. 1103(g)(1) precludes the Department from issuing these regulations, we contend that that paragraph cannot be read in isolation. As discussed above, 8 U.S.C. 1103(a)(1) together with subsection 1103(g)--and section 1324b--provide the Attorney General with the necessary authority to promulgate this rule. Furthermore, nothing in this rule alters the burden or standards of proof for assessing whether a person or entity has violated the statute, nor does the rule alter the authority of administrative law judges to adjudicate cases under section 1324b. Issue: Two commenters express concern that the Department does not enforce this law sufficiently. One of these commenters expresses appreciation for the government's interest in solving these problems, and states, ``[t]hese immigrants, who are not being hired and wish to fight the prejudice'' cannot combat discrimination in hiring because of ``their lack of knowledge of the U.S legal system. They already have to face obstacles of coming to the United States and taking on a new challenge of trying to establish themselves and then business owners are denying them the basic rights every American is given.'' Response: Although the Department recognizes the challenges that many employment-authorized immigrants face in overcoming discriminatory barriers, the Department has vigorously enforced this law to combat the discriminatory barriers identified by the commenter. The Department also engages in extensive outreach to the public to educate workers and employers about their rights and responsibilities under this law. Moreover, promulgating this rule is critical to conforming the existing regulations to the law. Information about the Department's enforcement and outreach work under this law is available at http://www.justice.gov/crt/about/osc. Issue: One commenter expresses concern that an employer that refuses to hire a worker who lacks employment authorization will be accused of discrimination, and that the employer that hires the same worker will be accused of violating the separate prohibition against knowingly hiring an unauthorized worker, found at 8 U.S.C. 1324a. Response: The Department disagrees with the accuracy of the example set forth in this comment. Section 1324b protects only employment- authorized individuals from discrimination under the INA. 8 U.S.C. 1324b(a)(1) (``It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien, as defined in section 1324a(h)(3) of this title) . . .'' (emphasis added)); see also 8 U.S.C. 1324a(h)(3) (defining ``unauthorized alien'' as an alien that is not ``lawfully admitted for permanent residence'' or ``authorized to be so employed''). As a result, an employer's refusal to hire a worker based on that worker's lack of employment authorization does not violate the INA's anti-discrimination provision. See 8 U.S.C. 1324b(a)(2)(C). The Department, along with DHS's U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE), has issued several public education materials that discuss how employers can avoid discrimination while also complying with legal requirements to verify employment eligibility and ensure they do not knowingly employ a worker who lacks employment authorization. For more information, visit www.justice.gov/crt/employer-information; https://www.uscis.gov/i-9-central; https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf. Office Name Change Issue: One commenter disagrees with the proposal to change the name of the office that enforces section 1324b, from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to the Immigrant and Employee Rights Section. The commenter claims that the new name ``is . . . not in line with the statute'' because section 274b(c) of the INA requires the President to appoint a Special Counsel to handle ``Immigration-Related Unfair Employment Practices,'' not for ``Employee Rights'' more generally. Moreover, the commenter claims that changing the name of the office will alter the Special Counsel's authority to enforce the law. [[Page 91771]] Response: The Department disagrees with this comment. The statute does not prescribe a name for the office that enforces section 1324b and the change in office name does not affect the Special Counsel's authority under the law. For the reasons discussed in the NPRM, in particular to eliminate public confusion regarding two offices in the Federal Government with the same name, the Department is changing the office's name to the Immigrant and Employee Rights Section. Comments Related to the Rule's Interpretation of Discrimination The Department received approximately 30 comments on the proposed rule's revisions related to the meaning of discrimination under section 1324b, many of which cited Sec. 44.101(e) and (g) as areas of concern. Most of the comments about these proposed revisions raised one or more of the following concerns: (1) The proposed revisions seek to remove the statutory requirement to show discriminatory intent; (2) the proposed revisions seek to change the long-established evidentiary paradigms used by courts to determine whether discrimination has been proved; and (3) the proposed revision to Sec. 44.200(a)(3) would remove a showing of ``harm'' to establish a violation. Throughout the comments, many commenters expressed concerns that the proposed revisions would lead to ``strict liability'' for ``innocent'' or ``unintentional conduct.'' Some commenters indicate that the proposed revisions would lead to violations under the statute based on a disparate impact theory of discrimination. Other commenters object to the proposed revisions for not requiring that an employer act with ill will or animus in order to violate the statute. The Department agrees that section 1324b requires a showing of intentional discrimination on the basis of a protected characteristic and that a violation cannot be established under a strict liability standard or a disparate impact theory. The Department's position remains that ill will or animus is not required to commit discrimination under the statute. To the extent that the proposed revisions created any confusion on these points, the Department is discussing these comments in more detail below. 1. Comments on the proposed revisions' effect on discriminatory intent. Most comments relating to the meaning of discriminatory intent under section 1324b address the definitions of ``discriminate'' at Sec. 44.101(e) and the phrase ``for the purpose or with the intent of discriminating against an individual in violation of paragraph (1)'' at Sec. 44.101(g). Regardless of whether the discussion is about discrimination in hiring, firing, or recruitment and referral for a fee in violation of 8 U.S.C. 1324b(a)(1), or about discrimination in unfair documentary practices under 8 U.S.C. 1324b(a)(6), the analysis for determining discriminatory intent is the same so the Department will address comments on the topic of intent together. Issue: One commenter expresses support for the definition of ``discriminate'' at Sec. 44.101(e). This commenter states that the ``clarity provided by the proposed regulation with regard to Sec. 1324b(a)(6) is of particular importance because,'' in the commenter's experience, including that of its affiliate unions, ``it is not uncommon for employers to require more or different documents for employment verification from non-citizens than from U.S. citizens, or from certain groups of workers based on their national origin as opposed to workers who `appear' to be U.S. citizens.'' Response: The Department agrees with this comment and, as discussed in the NPRM, this definition clarifies what discrimination means under section 1324b. As the commenter suggests, and as discussed below, the definition of ``discriminate'' includes intentionally treating individuals differently from others because of a protected characteristic. Issue: Several commenters believe that the proposed revisions seek to remove the discriminatory intent element from section 1324b altogether. Many of these commenters discuss at length the Ninth Circuit decision in Robison Fruit Ranch, Inc. v. United States, 147 F.3d 798 (9th Cir. 1998), in which the Court held that post-1996, a violation of 8 U.S.C. 1324b(a)(6) required a showing of discriminatory intent. Id. at 801. Numerous commenters provide the following example of a situation that the commenters believe could violate the law under the proposed revisions: A U.S. citizen decides unprompted to show a driver's license and unrestricted Social Security card for the employment eligibility verification process while a lawful permanent resident decides unprompted to show a Form I-551 Permanent Resident Card. One commenter further objects that the proposed definition of discriminate ``appears to include any employer conduct regardless of whether that conduct is in any way related to an employee's immigration status.'' (emphasis in original). Response: The Department agrees that the statute prohibits only intentional discrimination, and added paragraphs (e) and (g) to make that intent requirement clear. Indeed, for claims under section 1324b(a)(6), the regulations must be revised because the regulations in effect today include no intent requirement, even though the statute was amended to require discriminatory intent in 1996 and the Special Counsel has enforced the law as amended since 1996. However, in light of these comments, the Department is making one clarifying edit to the definition of ``discriminate'' in paragraph (e) to address any confusion. The Department is also more clearly explaining these proposed revisions to address any confusion about the meaning of discrimination and to reiterate that discriminatory intent is required in order to violate the statute. As an initial matter, paragraph (e)'s definition of ``discriminate'' as proposed solely addressed what that term means, namely, ``intentionally treating an individual differently from other individuals, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility.'' In the sentence in which the term ``discriminate'' appears in section 1324b(a)(1), the statute makes clear that any discrimination must be ``because of'' a protected characteristic, i.e., citizenship status or national origin. Reading the regulatory definition together with the statute, the language prohibits intentionally treating an individually differently from others because of a protected characteristic--the classic definition of disparate treatment discrimination. Nonetheless, based on the comments received, the Department recognizes the possibility that when read alone, paragraph (e)'s definition as proposed may create confusion. Therefore, the Department has decided to add language to the regulatory text to make even clearer that the definition at paragraph (e) must be read together with the statute's broader prohibition against discrimination based on national origin or citizenship status. To the extent that commenters believe the proposed revisions would seek to prohibit any difference in treatment whatsoever, the law and regulations make clear that only disparate treatment based on a protected characteristic is prohibited. See 8 U.S.C. 1324b(a)(1), (a)(6). Further, as discussed in the NPRM, a primary purpose of updating these regulations is to conform the regulations to the statute, which was amended in 1996 to provide that unfair documentary practices were unlawful [[Page 91772]] only if done ``for the purpose or with the intent of discriminating against an individual in violation of'' 8 U.S.C. 1324b(a)(1). The definition at paragraph (g) makes clear that discrimination under 8 U.S.C. 1324b(a)(6) also requires ``intentionally treating an individual differently based on national origin or citizenship status.'' The definitions in these paragraphs reflect longstanding black letter civil rights law and the Special Counsel's long-held position on what constitutes intentional discrimination under section 1324b. See, e.g., City of Los Angeles Dep't of Water and Power v. Manhart, 435 U.S. 702, 711 (1978) (finding sex discrimination where employer required female employees to make larger contributions than men to its pension fund because such treatment satisfies ``the simple test of whether the evidence shows `treatment of a person in a manner which, but for that person's sex, would be different' ''); Int'l Union v. Johnson Controls, Inc., 499 U.S. 187, 200 (1991) (applying the ``simple test'' in Manhart). The holding in Robison, 147 F.3d 798, on which several commenters rely for their position that the Department is seeking to remove the intent requirement from the statute, is also in harmony with the Special Counsel's position. In that case, the Ninth Circuit held that ``Congress intended a discrimination requirement in the 1990 statute and merely clarified the statute to state that intent in its 1996 amendment.'' Robison Fruit Ranch, Inc., 147 F.3d at 801. The Court did not find discrimination because the employer's documentary requests were made to both U.S. citizens and non-U.S. citizens. Id. This decision is consistent with the Department's position on what discrimination means under the statute. While several commenters state that the Department's proposed definition of discrimination is based exclusively on references to OCAHO decisions or the Special Counsel's prior positions, the NPRM and this rule contain several references to seminal Supreme Court cases that support the Department's proposed definition. Moreover, the suggestion that OCAHO case law is insufficient is misguided because Congress authorized OCAHO administrative law judges (ALJs) to decide cases under the statute. See 8 U.S.C. 1324b(e)(2). In one example provided by a number of commenters mentioned above, a lawful permanent resident chooses to show a Permanent Resident Card for the employment eligibility verification process while a U.S. citizen provides a driver's license and Social Security card, both ``without any prompting by the employer.'' The employer in this example would not face liability unless the employer was requesting specific, more, or different documents from workers for employment eligibility verification purposes because of the workers' protected characteristic. If, however, the employer allows each worker to show his or her choice of valid documentation for the employment eligibility verification process, the employer would not be discriminating in violation of the statute. Issue: A number of commenters object to what they claim is an attempt to apply a strict liability standard to ``innocent'' or ``unintentional conduct'' that lacks the necessary ``ill will or animus.'' One commenter points to the dictionary definitions of ``discriminate,'' claiming that the proper legal definition of ``discriminate'' involves ``unfair or bad treatment,'' and that if the definition just meant ``different'' treatment, employers who engage in ``innocent behavior [would be] swept up in the enforcement apparatus.'' Another commenter states that Congress intended a showing of animus or ill will to establish a violation and the regulation should reflect that legislative intent. This commenter objects that the definition of ``discriminate'' would ``actually apply to employers who intentionally treat individuals differently even if [the employers] want to help [the employees] through the employment eligibility process.'' The commenter suggests that under the proposed revisions, providing sign language assistance to a worker completing the Form I-9 or allowing a family member or friend to serve as an interpreter could constitute intentional discrimination and violate the law. Other commenters provide different examples of conduct they see as helpful to a worker that they claim could be a violation of the law under the proposed revisions, such as an employer that asks a lawful permanent resident who neglects to include a USCIS/alien number in Section 1 ``for documentation,'' or an employer that says to a worker who selected lawful permanent resident in Section 1 of the Form I-9, ``Oh, I see you are a permanent resident. Do you have your green card for completion of Section 2 [of the Form I-9]?'' Two commenters share a similar example involving a human resources associate who seeks to assist new employees complete the Form I-9 by asking whether the employee is a U.S. citizen or born outside of the United States, and depending upon the answer, suggests specific documents that could satisfy Form I-9 requirements. Another commenter, relying on ``good faith'' defenses set forth in section 1324a, suggests that discrimination can never include ``good faith efforts to verify the employment eligibility'' of workers. This commenter also criticizes the NPRM's use of language from United States v. Life Generations Healthcare, LLC, 11 OCAHO no. 1227, 22-23 (2014), arguing that the Department's references to Life Generations fail to support the proposition that discrimination in violation of section 1324b does not require ill will or malice. Response: The Department disagrees that the law requires a showing of animus or ill will to establish discriminatory intent or that section 1324b recognizes a ``good faith'' defense to discrimination. An employer cannot justify discriminatory conduct simply by claiming a lack of ill will or animus, or that differential treatment based on citizenship or national origin is nevertheless legal because the employer is trying to assist workers in ``good faith.'' The Department's position mirrors the Supreme Court's and other courts' analyses on what constitutes intentional discrimination in a variety of contexts, including the principle that explicit discrimination is disparate treatment even absent a malevolent motive, and is consistent with OCAHO case law. See, e.g., Johnson Controls, 499 U.S. at 199 (stating that, in the context of Title VII, ``absence of a malevolent motive does not convert a facially discriminatory policy into a neutral policy with a discriminatory effect. Whether an employment practice involves disparate treatment through explicit facial discrimination does not depend on why the employer discriminates but rather on the explicit terms of the discrimination.''); Life Generations Healthcare, LLC, 11 OCAHO no. 1227 at 22-23 (``It is not required that malice or ill will be shown, and the absence of a malevolent motive does not alter the character of a discriminatory policy.'') (citing Johnson Controls)); see also Kentucky Retirement Systems v. E.E.O.C., 554 U.S. 135, 161 (2008) (stating that, under the Age Discrimination in Employment Act (ADEA), ``an otherwise discriminatory employment action cannot be rendered lawful because the employer's motives were benign''); Manhart, 435 U.S. at 711 (articulating the ``simple test of [sex discrimination as] whether the evidence shows `treatment of a person in a manner which but for that person's sex would be different'''); E.E.O.C. v. Baltimore Cnty., 747 F.3d 267, 273 (4th [[Page 91773]] Cir. 2014) (``To prove facial discrimination under the ADEA, a plaintiff is not required to prove an employer's discriminatory animus.''); Holland v. Gee, 677 F.3d 1047, 1059 (11th Cir. 2012) (stating that in an employment discrimination case that ``insofar as [a respondent] insists that there must be proof of ill will or `animus,' that suggestion is misguided''); Community House, Inc. v. City of Boise, 490 F.3d 1041, 1049 (9th Cir. 2006) (stating that ``ostensibly benign purpose'' for differential treatment does not overcome discriminatory intent under the Fair Housing Act); Bangerter v. Orem City Corp., 46 F.3d 1491, 1500-01 (10th Cir. 1995) (holding that ``a plaintiff need not prove the malice or discriminatory animus of a defendant to make out a case of intentional discrimination where the defendant expressly treats someone protected by the [Fair Housing Act] in a different manner than others''). This same interpretation of discrimination has long been described in the Special Counsel's public education materials, Web site, and outreach presentations. In short, a definition of discrimination that requires complainants to prove that an employer acted with ill will, hostility or animus, in addition to showing differential treatment on the basis of a protected characteristic, finds no support in the statutory text or case law. While some commenters criticize the NPRM's characterization of Life Generations, the Life Generations case makes clear that ``a person has the intent to discriminate if he or she would have acted differently but for the protected characteristic.'' 11 OCAHO no. 1227 at 29. The ALJ in Life Generations explained that the proper test to determine discriminatory intent asks whether the outcome or treatment received would have been different if the protected classes had been reversed. Id. at 22-23. The ALJ in that case found the requisite discriminatory intent because it was ``evident . . . that had the groups been reversed, the outcome would have differed'' despite the fact that the human resources personnel ``bore no hostile motives toward foreign-born employees, and had no subjective discriminatory intent.'' Id. In finding that the employer had the requisite discriminatory intent under section 1324b(a)(6), the ALJ relied on Supreme Court precedent establishing that ``the absence of a malevolent motive does not alter the character of a discriminatory policy.'' Id. at 23 (citing Johnson Controls, 499 U.S. at 199); see also United States v. Gen. Dynamics Corp., 3 OCAHO no. 517, 1121, 1163 (1993) (``An employer knowingly and intentionally discriminates on a prohibited basis if it deliberately treats a job applicant differently on the basis of the applicant's citizenship status regardless of the employer's motivation for the discrimination.''). The proposed revisions correctly characterize the Life Generations ruling and are consistent with its analysis of discriminatory intent under section 1324b. We further note that a number of the commenters' examples would not violate the statute as long as the employers are not treating employees differently because of a protected characteristic. In one example, an employer allows an employee's friend or family member to help translate the Form I-9 for the employee. Such an act would not be considered discrimination unless the employer allowed only certain employees to have a friend or family member assist in completing the Form I-9 based on citizenship status or national origin. We agree that other commenters' examples could raise potential violations, but this conclusion is based on the statutory language in effect for decades and the Special Counsel's long-standing positions. In the example of the employer who asks a lawful permanent resident for documentation after the worker fails to provide a USCIS/alien number in Section 1, the employer would be discriminating in violation of section 1324b(a)(6) if the employer did not ask other workers for documentation to verify missing information in Section 1. In other words, if an employer requested that lawful permanent residents who failed to write their USCIS/alien number show a document with that number, but did not request the same of U.S. citizens who left Form I-9 fields blank (e.g., zip code or date of birth), that employer may well violate section 1324b(a)(6). More broadly, it is not clear from the example why the hypothetical employer would not simply ask the lawful permanent resident to write in the missing USCIS/alien number instead of asking for a document. In another example, an employer that says to a lawful permanent resident, ``Oh, I see you are a lawful permanent resident. Do you have your green card for Section 2?'' may also be acting in violation of the law. Employers may not request specific documents for employment eligibility verification purposes based on a worker's citizenship status or national origin. Regarding this specific example, lawful permanent residents do not have to show their permanent resident card or ``green card'' when they start working; if an employer requests specific documentation from lawful permanent residents but does not request specific documents of U.S. citizens, it would be discrimination. And as with the above example, the employer in this example would be liable under the current statutory language, regardless of whether the Department amended the implementing regulations. Similarly, in the example involving a human resources associate asking for an employee's citizenship status and then offering suggestions for documentation that the employee might have based on the answer, the act may indeed violate the law if the employer's actions amount to requesting specific documents for employment eligibility verification purposes from workers based on their citizenship status or national origin. The Department further notes that many of the examples provided by commenters characterize the act of asking for specific documents from workers during the employment eligibility verification process as ``assistance.'' The Department disagrees with this characterization. Requesting specific employment eligibility verification documents from employees unnecessarily limits their choice of documentation. An employer that is interested in helping workers through the employment eligibility verification process should provide all workers with the Lists of Acceptable Documents and explain to them that they may present one List A document or one List B document and one List C document. Because the text of section 1324b does not contain a ``good faith'' defense, unlike section 1324a, the Department will not insert such a defense to discrimination in the proposed revisions. Issue: One commenter disagrees with changes to Sec. 44.200(a)(1)'s description of the prohibition against discrimination in hiring, firing, recruitment and referral for a fee. Specifically, this commenter disagrees with the removal of the word ``knowingly'' and states, ``one must `know' they are discriminating to be liable under this intentional act'' and that it was ``illogical'' for the Department to remove what the commenter believes is a ``required element'' for establishing a violation. Response: The Department disagrees with this comment and is adopting the language from the proposed rule without change. The proposed revision properly reflects the statute's requirement that a person or entity must engage in ``intentional'' discrimination. Further, the Department disagrees that a person or entity must know it is [[Page 91774]] discriminating to violate the statute; as discussed in the responses to other comments above, the statute requires that an employer intentionally treat individuals differently based on their citizenship status or national origin. An employer's ``knowledge'' that this disparate treatment constitutes ``discrimination'' is not an element of a violation. Issue: A number of commenters disagree with the change in terminology in Sec. 44.200(a)(3) from ``documentation abuses'' to ``unfair documentary practices.'' These commenters stated that these changes ``blur[ ] the line of intent required'' to establish a violation and are part of a ``march toward strict liability.'' Response: The Department disagrees with these comments. As discussed in the NPRM, the change from ``documentation abuses'' to ``unfair documentary practices'' is intended to more clearly describe the prohibited conduct. In addition, this change in terminology more closely tracks the statutory language and has no impact on the intent required to prove a violation. 2. Comments regarding the proper evidentiary frameworks for establishing discrimination. Several commenters raise concerns that the proposed revisions do not comply with the proper evidentiary frameworks for analyzing discrimination claims. Issue: A number of commenters claim that the rule's definition of ``discriminate'' shifts the burden to the employer, contrary to well- established discrimination case law. Several commenters believe the proposed definition of ``discriminate'' ``steamrolls over the substance and procedure of well-established Title VII law,'' and, according to another commenter, converts cases under 8 U.S.C. 1324b to ``disparate impact cases that are outside of OSC's jurisdiction.'' One commenter claims that the Department is seeking to import a complainant's burden of proof at the liability stage in a pattern or practice case to the disparate treatment circumstantial evidence context. This commenter insists that paragraph (e)'s definition of ``discriminate'' in the NPRM ``directly contradicts'' the traditional burden-shifting framework recognized by OCAHO in U.S. v. Diversified Technology and Services of Virginia, Inc., 9 OCAHO no. 1095, 13 (2003). Yet another commenter states that ``[t]he proposed rule would essentially presume discrimination at the first stage.'' Another commenter believes the proposed revisions would ``effectively remove the employer's ability to offer any defense or non-discriminatory explanation for its actions.'' Response: The Department disagrees that the definition of ``discriminate'' or any other proposed revision alters the long- established evidentiary burdens to prove discrimination, but as discussed above has added clarifying language to the definition of ``discriminate'' to address any confusion about what is required to show discrimination in violation of the law. Section 1324b is modeled after Title VII of the Civil Rights Act of 1964, and case law under that statute ``has long been held to be persuasive in interpreting Sec. 1324b.'' Sodhi v. Maricopa Cty. Special Health Care Dist., 10 OCAHO no. 1127, 7-8 (2008). The evidentiary frameworks set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), for individual claims of discrimination and in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 360-62 (1977), for pattern or practice claims of discrimination apply to cases under section 1324b. The Department has consistently relied on such frameworks when litigating cases before OCAHO. Moreover, OCAHO has analyzed cases under section 1324b using these traditional frameworks, including in Diversified Technology, 9 OCAHO no. 1095, and Life Generations, 11 OCAHO no. 1227. The definition of ``discriminate'' in the proposed rule does not alter the parties' respective burdens in a pattern or practice claim or individual claim, and the McDonnell Douglas and Teamsters frameworks set forth by the Supreme Court in interpreting Title VII continue to apply. An example provided by several commenters helps to illustrate the traditional framework for establishing an intentional discrimination claim, which the proposed revisions do not change. In this example, an employer's Forms I-9 show ``that the overwhelming majority of non- citizens had provided a List A document (their [Form I-551 Permanent Resident] card), whereas the overwhelming majority of U.S. citizens had provided a List B and a List C document,'' and ``the employer offers no guidance to new employees on completing the Form I-9 and accepts precisely the documents volunteered by the employees.'' The commenters believe that under the proposed revisions and the recent OCAHO decision in Life Generations, 11 OCAHO no. 1227 at 22, the Special Counsel and OCAHO could nevertheless ``find discriminatory intent by the employer, triggering sanctions.'' This concern misinterprets the proposed revisions and the Life Generations case. Although statistical disparities can ``serve an important role'' in establishing a prima facie case of discrimination, Teamsters, 431 U.S. at 339-40, the employer's action in the commenters' example does not amount to discrimination because the employer did not request more, different or specific documents, or reject valid documentation, based on a protected class. Even assuming a different example where a complainant makes out a prima facie case of discrimination that includes statistical evidence showing that different protected classes presented different documents, the employer could then provide a legitimate, non-discriminatory reason for the statistical disparity. For instance, the employer may state that the employees volunteered to show those documents with no request by the employer. The complainant would then have an opportunity to offer evidence rebutting the employer's legitimate non-discriminatory reason. Ultimately, the burden still rests on the complainant to prove that the employer requested specific documents from employees based on their protected class. Given the above, the Department disagrees that the NPRM's quotes from the Life Generations case are taken out of context. While Life Generations applied the evidentiary framework in Teamsters, the definition at paragraph (e) applies regardless of whether a case involves an individual claim of discrimination analyzed under McDonnell Douglas, a pattern or practice claim decided under Teamsters, or a case based on direct evidence of discrimination. What the Department wishes to make clear in these proposed revisions, and specifically in the definitions in paragraphs (e) and (g) of Sec. 44.101 that the Department is adopting in this rule, is that an employer cannot overcome evidence of discrimination simply by claiming that the discriminatory behavior (which in the context of unfair documentary practices would be requests for more, different, or specific documents, or the rejection of valid documentation, based on an employee's citizenship status or national origin) was somehow justified because it was meant to ``help'' workers or was not based on ``ill will'' or ``animus.'' Such explanations cannot constitute legitimate, non- discriminatory reasons because, by their very terms, the explanations acknowledge that there is disparate treatment based on a protected class. As noted above, the Department agrees that disparate impact liability is unavailable under section 1324b. None [[Page 91775]] of the proposed revisions affects that conclusion. Issue: In contrast to the comments above, one commenter believes that 8 U.S.C. 1324a offers the preferred framework over Title VII for interpreting discrimination under 8 U.S.C. 1324b. This commenter states that section 1324b ``is not a `stand-alone' anti-discrimination statute, and that [the Special Counsel] cannot interpret the statute as if it were. Rather, Sec. [1324b] is irrevocably tethered to the scope of the employer sanctions regime, and [the Special Counsel's] regulatory jurisdiction does not extend beyond those anti- discrimination concerns that are reasonably related to employer sanctions or the employment verification requirements of Sec. [1324a].'' This commenter points to a shared historical context for the two provisions and the fact that 8 U.S.C. 1324a requires that employers treat certain individuals differently in particular contexts based on the lack of, type of, or duration of employment authorization. This commenter further states that ``Congress intended Sec. [1324b] . . . to account for the particular complexities in the immigration field that differ from the broader and more absolute prohibitions against employment discrimination in the Title VII context,'' and that ``Sec. [1324b] stands . . . on a different footing from other types of employment discrimination.'' Response: The Department does not believe any change to the rule is required by this comment. It is well-accepted that section 1324b should be read within the context of the overarching scheme that Congress created in IRCA. However, employers that comply with section 1324a can also comply with section 1324b, and the fact that the law requires employers to treat employees differently based on their immigration status in some instances under section 1324a does not justify using a different standard for what discrimination under section 1324b means, thereby departing from black letter civil rights law and the Special Counsel's long-held positions. OCAHO has long looked to Title VII case law in interpreting section 1324b. See Sodhi, 10 OCAHO no. 1127 at 7-8 (``Because Sec. 1324b was expressly modeled on Title VII of the Civil Rights Act of 1964 as amended . . . case law developed under that statute has long been held to be persuasive in interpreting Sec. 1324b.''). The Department agrees with OCAHO precedent that the evidentiary frameworks and principles that the Supreme Court has established to analyze employment discrimination cases under Title VII are highly instructive in interpreting section 1324b. The Department also disagrees with the commenter's suggestion that because section 1324a requires employers to treat certain individuals differently in particular contexts based on their employment authorization, citizenship status and national origin should be viewed as qualitatively different than other protected classes. Section 1324b carefully lays out the available exceptions to the general prohibition against discrimination based on citizenship status or national origin. See 8 U.S.C. 1324b(a)(2)(A), (a)(2)(C), (a)(4). Apart from those exceptions, the Department believes that citizenship status and national origin should be viewed and analyzed in the same manner as any other protected class for discrimination purposes. 3. Comments on the ``harm'' required to establish a violation of section 1324b(a)(6). The Department received a number of comments regarding how, if at all, the proposed revisions would change the conduct required to establish an unfair documentary practice, namely, what is required to establish a ``harm'' under the statute. Issue: One commenter expresses support for the proposed revisions to Sec. 44.200(a)(3), and states that it is ``entirely consistent with the statute's remedial scheme to allow OSC or a private complainant to seek to remedy unfair documentary practices even where no employee has experienced economic harm, as both reviewing courts and administrative law judges have held.'' Response: The Department appreciates this comment. Issue: A number of commenters state that this rule would remove the requirement to show an individual was ``harmed'' to establish liability. The commenters do not specify what they refer to as ``harm,'' though some specifically pointed to the proposed revision's clarification at Sec. 44.200(a)(3)(ii), which explains that a violation of section 1324b(a)(6) does not require proof of an ``economic harm.'' Another commenter states that discrimination under section 1324b(a)(6) must include some harm other than just treating people differently, such as ``unfavorable'' treatment or ``abusive'' behavior. Response: The Department believes no change is warranted by these comments. As discussed above, a finding of a violation under the law is premised on a showing of discrimination. As discussed in the NPRM, the statutory text does not include any language requiring an economic injury to establish a violation under section 1324b(a)(6). Moreover, the harm or ``unfavorable'' treatment in a claim under section 1324b(a)(6) is subjecting a worker to a discriminatory document request or rejection based on the worker's citizenship status or national origin. This has been the statutory requirement since the 1996 amendments, and the proposed revisions make no change to the elements required to establish a violation. Definitions The Department received several comments regarding the definitions in Sec. 44.101 and discusses them below. Issue: The Department received one comment on the definition of ``charge'' in paragraph (a). The commenter disagrees with the change in this definition to eliminate the requirement upon a charging party to identify the injured party's specific immigration status to satisfy the regulatory definition of a charge. According to this commenter, this change may cause the Special Counsel to ``not properly allocate its resources'' because the Special Counsel would not have information about immigration status. The comment also states that if the Department has eliminated the requirement to provide immigration status information ``because persons in the U.S. are sometimes unclear as to their legal status, then that point further evidences the complexity of this system for employees and employers alike.'' Response: The Department declines to change this definition as proposed. The charging party is still required to provide citizenship status information, and nothing in the regulations prohibits the Special Counsel from requesting additional information, as needed, regarding the injured party's immigration status. As discussed in the NPRM, immigration status information is not required to determine whether the Special Counsel has jurisdiction to investigate an alleged unfair immigration-related employment practice, and the Department will not require this information to deem a submission to constitute a charge under Sec. 44.101(a). The Department does not believe that the absence of this information upfront from a charging party will have any effect on its ability to properly allocate resources. Issue: The Department received a number of comments on the definition of charging party in paragraph (b) and its cross reference to the ``injured party'' definition in paragraph (i). These commenters disagree with the use of the term ``injured party,'' which is defined [[Page 91776]] as ``an individual who claims to be adversely affected directly by an unfair immigration-related employment practice.'' 28 CFR 44.101(i). The commenters state that referring to the person claiming an injury as ``injured'' before making a determination on the merits of the claim ``essentially presumes that which must be proven, suggesting an effort to write out of the statute the requirement to prove `adverse effect' and moving to a `strict liability' standard.'' The commenters believe that ``a party should be a `charging party' or an `individual' until they have proven that they are `injured.' '' Another commenter believes the charging party definition should remain as it is or changed to ``a neutral term, such as `claimant' '' in order ``to eliminate the impression, even if only subliminally, that an individual filing a claim has been `injured.' '' Response: The Department disagrees with the commenters' suggestion that by simply using the term ``injured party,'' the Department is making a judgment on the merits of a claim. ``Injured party'' is defined as ``an individual who claims to be adversely affected'' in order to avoid any presumption of the merits of the claim. This term has also been in the regulations since they were initially promulgated in 1987 without impacting the impartiality of the Special Counsel's investigations. See Unfair Immigration-Related Employment Practices, 52 FR 9277 (Mar. 23, 1987) (codified at 28 CFR pt. 44). An ``injured party'' may or may not be a ``charging party'' as the statute allows that a person acting on behalf of an individual who ``is adversely affected directly by an unfair immigration-related employment practice'' may also file a charge. 8 U.S.C. 1324b(b)(1). The Department declines to make any changes to the definition of ``charging party'' or ``injured party'' as proposed. Issue: The Department received three comments about the definition of ``citizenship status'' in paragraph (c). One commenter requests that the Department define ``citizenship status'' using a ``flexible definition of immigration status'' that includes individuals whose status is unclear. Another commenter believes that the Department is seeking through this definition to expand the class of individuals protected from citizenship status discrimination beyond those who meet the ``protected individual'' definition in 8 U.S.C. 1324b(a)(3) to include all non-citizens. A third commenter claims that the statute provides no basis to include ``immigration status'' in the definition of ``citizenship status.'' This commenter also stated that the term ``immigration status'' is ambiguous and would require human resources personnel to be ``immigration law expert[s]'' to determine what it means. Response: The Department disagrees with these comments and will adopt the language of the proposed definition without change. The proposed definition does not address the issue of or attempt to modify the classes of individuals who are protected from unfair immigration- related employment practices under the statute. Rather than addressing particular immigration statuses, this definition simply makes clear that ``citizenship status'' connotes more than just whether an individual is or is not a U.S. citizen, and also includes a non-U.S. citizen's immigration status. See, e.g., Kamal-Griffin v. Cahill Gordon & Reindel, 3 OCAHO no. 568, 1641, 1647 (1993) (``Congress intended the term `citizenship status' to refer both to alienage and to non-citizen status.''). In addition, understanding what constitutes immigration status discrimination does not require human resources personnel to be immigration experts. To comply with this law, the employer does not need to know the intricacies of a particular immigration status or what an individual needs to show to qualify for employment given such a status. Rather, if an employer, based on an individual's immigration status, treats that individual differently in the hiring, firing, recruitment or referral for a fee process, or commits an unfair documentary practice, the employer may violate the law. Using an example from the NPRM, an employer that refuses to hire a refugee based on that person's status as a refugee may well violate section 1324b(a)(1). Issue: The Department received three comments on paragraph (f)'s definition of ``for purposes of satisfying the requirements of section 1324a(b).'' One commenter expresses support for paragraph (f)'s definition of ``for purposes of satisfying the requirements of section 1324a(b)'' as ``a reasonable construction of the statutory language.'' Two commenters raise concerns that paragraph (f) is overly broad. The first commenter believes the statute's prohibition against unfair documentary practices is unambiguous and refers only to the Form I-9 process. This commenter claims that the use of E-Verify does not ``satisfy the requirements of [section] 1324a(b)'' because the statute authorizing E-Verify does not explicitly reference section 1324a(b), and therefore discrimination in the use of E-Verify cannot constitute an unfair documentary practice under 8 U.S.C. 1324b. This commenter further believes that under the definition in the proposed rule, employment processes that have nothing to do with satisfying the requirements of section 1324a(b) would be covered, such as requesting documents as part of vaccination law compliance, tax law compliance, and criminal background checks. The second commenter states that section 1324b(a)(6) does not cover discrimination involving E-Verify because Congress was aware of electronic verification when it amended section 1324b in 1996 and chose not to include ``any electronic system'' in section 1324b. Response: The Department declines to make any change to this definition as proposed in the NPRM. As noted in the NPRM, OCAHO has recognized that unfair documentary practices can occur outside of the actual completion of the Form I-9. For example, discriminatory documentary requests at the application stage to verify employment eligibility can constitute unfair documentary practices in violation of the law. See United States v. Mar-Jac Poultry, Inc., 10 OCAHO no. 1148, 11 (2012) (recognizing potential liability for unfair documentary practices committed against job applicants). Discriminatory documentary practices, such as requesting more or different documents or rejecting valid documentation, in the E-Verify process likewise violate 8 U.S.C. 1324b(a)(6). The E-Verify process flows from and is inextricably intertwined with 8 U.S.C. 1324a(b), and E-Verify's primary purpose is to assist employers with confirming an individual's work authorization status once the individual and the employer have completed the Form I-9 as required by 8 U.S.C. 1324a(b). Contrary to one commenter's assertion, the E-Verify statute, found at 8 U.S.C. 1324a note, explicitly references 8 U.S.C. 1324a(b) in several places. See, e.g., 8 U.S.C. 1324a note, secs. 403(a)(2)(A); 403(a)(2)(B)(ii); 403(a)(4)(A); 403(b)(2)(A); 403(b)(3); 403(b)(4); 403(c). Moreover, when Congress created several pilot programs in 1996, including what would later be named E-Verify, Congress mandated reports at the end of the third and fourth years of the pilot projects to assess, among other things, the degree to which these programs ``assist in the enforcement of section 274A'' of the INA. 8 U.S.C. 1324a note, Sec. 405(a)(3). While Congress authorized the electronic program that would be later named E-Verify at the same time that it last amended section 1324b(a)(6), the electronic program did not launch until 1997. History and Milestones of the E-Verify Program, U.S. Citizenship and [[Page 91777]] Immigration Services, https://www.uscis.gov/e-verify/about-program/history-and-milestones (last updated July 15, 2015). Therefore, it is no surprise that Congress did not include a reference to this program in the 1996 amendments to section 1324b(a)(6). Because an employer's use of E-Verify is inextricably intertwined with ``the requirements of section 1324a(b),'' the use of E-Verify is covered by the definition. However, to the extent that an employer adopts a practice that does not have the purpose of verifying employment authorization, such as making document requests for tax or vaccination purposes, that practice would fall outside the scope of the definition and the law's prohibition against unfair documentary practices. Issue: Several commenters express concern about the definition of ``hiring'' at paragraph (h). One commenter claims that this definition ``would now include an unlimited range of employer activity,'' and that ``any employer conduct may constitute discrimination (regardless of intent) during the pre-hire process.'' This commenter also raises concerns that this new definition would interfere with an employer's ability to ask applicants general questions about eligibility to work in the United States and to ask questions associated with a post-hire background check, including asking an applicant to identify the applicant's country of origin, present an identification document from the applicant's country of origin, or respond to questions about issues that arise in the background check. One commenter raises a concern that the proposed definition is so broad that it would ``require every person working for a single employer to be a Form I-9 expert'' and suggests that the proposed definition would expand liability for employers based on the acts of those who are not ``decision maker[s],'' using, as one example, an 18- year old assembly line worker who tells his sibling that his employer is hiring and to ``go to the office'' and ``bring your license, social security card and green card.'' Other commenters criticize the definition's inclusion of ``recruitment'' and ``onboarding.'' These commenters cite to United States v. Mar-Jac Poultry, Inc., 10 OCAHO no. 1148, 11 (2012) and Mid- Atlantic Reg'l Org. Coal. v. Heritage Landscape Servs., 10 OCAHO no. 1134, 8 (2012), as support for a narrower definition of ``hiring'' that would include only ``the entire selection process.'' The commenters argue that there is only one reference to ``recruitment'' in both 8 U.S.C. 1324a and 8 U.S.C. 1324b, namely, ``recruitment or referral for a fee,'' and therefore argue that the statute does not apply to a prospective employer's pre-hire activity like recruitment. The commenters further claim that there is no authority to include ``onboarding'' processes like training or new employee orientation in this definition. Response: The Department declines to make any changes to this definition as proposed in the NPRM. Nevertheless, based on comments received, the Department offers further clarification below. The Department's proposed definition of ``hiring'' is in line with OCAHO case law and the Special Counsel's longstanding position that discrimination at any point in the hiring process can violate the statute. At the outset, an employer that asks all applicants whether they are eligible to work would not violate the statute because there would be no differential treatment based on citizenship status or national origin. As a result, and contrary to one commenter's concern, this proposed definition would not affect an employer's ability to ask all job applicants about eligibility to work in the United States. The Department further disagrees that this definition imputes any liability to an employer for acts of employees that could not already be imputed to an employer under the statute, regulations in effect today, and relevant case law. The question of when an employer is liable for the acts of its employees is very fact-specific and is not addressed by this proposed definitional change. Although the Department agrees that recruitment as used in paragraph (h) could not include ``recruitment for a fee,'' the Department distinguishes between ``recruiting'' that occurs in the process of hiring an individual and ``recruiting for a fee'' as used in the statute. While recruitment by an employer is the act of soliciting applicants and applications, recruiting for a fee involves a third party soliciting applicants as a paid service to an employer. The Department believes that an employer soliciting applicants and applications must be included in the definition of ``hiring'' because such recruiting activity is an integral part of the selection process. Recruiting may impact, and in some cases determine, who learns about the job vacancy, who applies for a position, and who is selected for a position. Including recruiting in the definition of ``hiring'' is also supported by OCAHO case law. See, e.g., Mid-Atlantic Reg'l Org. Coal., 10 OCAHO no. 1134 at 8 (noting that section 1324b ``specifically applies to recruitment for employment as well as to hiring''). Finally, the statute's explicit reference to ``recruitment for a fee'' by a third party does not mean that an employer's hiring efforts cannot encompass both recruitment of and selection of prospective employees. The definition of ``hiring'' must also include the onboarding process to capture all of the steps necessary to select individuals and place them in positions to work. Employers vary widely in their terminology, practices, and views regarding what steps are necessary to complete the selection process. For instance, some employers make a job offer, which the employee accepts, but which is conditioned implicitly or explicitly on meeting other requirements like passing drug tests, completing a formal application, or completing the Form I-9. This ``selection'' of a candidate is only tentative; it is not final because it is conditioned on the completion of other tasks. Including onboarding in the definition of ``hiring'' would ensure that all these steps to place an individual in a position to start work are covered by the statute. For instance, the definition would capture such practices as discriminatory background checks that may occur after a conditional offer is made and accepted, but before actual employment begins. To the extent that employers impose background checks on new hires in a discriminatory manner based on citizenship status or national origin, this could violate the law. Finally, an employer that requests documentation as part of the background check process as a proxy for verifying authorization to work based on a worker's citizenship status or national origin, may violate the statute's prohibition against discrimination in hiring, in addition to the prohibition against unfair documentary practices. This view is consistent with OCAHO case law, which has ``long held that it is the entire selection process, and not just the hiring decision alone, which must be considered in order to ensure that there are no unlawful barriers to opportunities for employment.'' Id. For instance, in United States v. Townsend Culinary, Inc., 8 OCAHO no. 1032, 454, 510-11 (1999), OCAHO found that discrimination in the employment eligibility verification process (which occurred at the onboarding stage) violated not only the statute's prohibition against unfair documentary practices but also the statute's general prohibition against discrimination in hiring, firing, and recruitment or referral for a fee under 8 U.S.C. 1324b(a)(1). Issue: The Department received one comment on the definition of ``more or different documents than are required under such section'' in paragraph (j). [[Page 91778]] This commenter believes that the statute does not provide support for the definition's inclusion of ``any limitation on an individual's choice of acceptable documentation to present to satisfy the requirements of 8 U.S.C. 1324a(b).'' This commenter also believes the definition is confusing because Form I-9 rules already impose limitations on which documents individuals completing the Form I-9 may present. The commenter further raises the example of E-Verify's requirement that an individual who chooses to show a List B document for the Form I-9 for an employer that uses E-Verify can only show a List B document that contains a photo. Response: The Department disagrees with this comment and is adopting the definition as the Department proposed with no change. For the reasons discussed in the NPRM, OCAHO case law supports the reading of the statute reflected in this definition, and the Special Counsel's longstanding position has been that discriminatory requests for specific documents violate the statute. See, e.g., Townsend Culinary, Inc., 8 OCAHO no. 1032 at 507; United States v. Strano Farms, 5 OCAHO no. 748, 206, 222-23 (1995); United States v. Beverly Ctr., 5 OCAHO no. 762, 347, 351 (1995); United States v. A.J. Bart, Inc., 3 OCAHO no. 538, 1374, 1387 (1993); see also United States v. Zabala Vineyards, 6 OCAHO no. 830, 72, 85-88 (1995) (holding, prior to the enactment of IIRIRA, that 8 U.S.C. 1324b(a)(6) did not prohibit an employer's request for specific documents ``in the absence of evidence that . . . aliens but not other new hires were required to rely on and produce specific documents''). Regarding the comment that the definition is confusing in light of existing limitations on the documents individuals can provide, the examples the commenter provides do not involve an employer imposing a limitation based on an individual's citizenship status or national origin. The fact that Form I-9 rules impose, as the commenter states, ``limitation[s] on the documents that may be presented'' does not implicate a specific discrimination concern. In the commenter's example involving an E-Verify user, if an employer specifies that a worker who wishes to show a List B document can only show a List B document with a photo based on the employer's use of E-Verify, and applies this E- Verify obligation consistently regardless of its workers' citizenship status or national origin, the employer would not violate the statute because of that specification. However, an employer that imposes limitations on the types of valid and acceptable Form I-9 documents a worker can present due to the worker's protected class is likely to violate the statute. Issue: The Department received one comment on the definition of ``protected individual'' in paragraph (k). This commenter raises a concern that the definition excludes lawful permanent residents who do not apply for naturalization within six months of the date the lawful permanent resident first becomes eligible. Response: The Department will not make the change proposed by the commenter because the definition of ``protected individual'' comes directly from the statute at 8 U.S.C. 1324b(a)(3), and only Congress can change the meaning of ``protected individual.'' However, the Department is modifying the definition of ``protected individual'' to make the regulatory language mirror the statutory language by adding the words ``granted the status of'' to paragraph (k)(3). Issue: One commenter expresses support for the definition of ``recruitment and referral for a fee'' in paragraph (l) and also asks the Department to clarify that ``the exclusion of union hiring halls applies to'' this definition ``in the same manner as [the exclusion] applies to the parallel phrases in 8 CFR 274a.1(d) & (e).'' Response: The Department agrees with the commenter that the definition at paragraph (l) as proposed excludes union hiring halls. This definition has the same meaning as ``recruit for a fee'' and ``refer for a fee,'' respectively, in 8 CFR 274a.1, and those definitions expressly exclude union hiring halls as well. Issue: One commenter requests that the Department add a definition to the rule to ``clarify that [section 1324b of] the INA protects all work authorized individuals from unfair documentary practices.'' This commenter believes the proposed rule ``does not adequately guard all work-authorized individuals from unfair documentary practices.'' The commenter states that while there is a conflict in the case law on this issue, it believes that ``the more persuasive cases hold that the prohibition on document abuse, 8 U.S.C. 1324b(a)(6), extends to all work-authorized individuals.'' Response: The Department declines to add regulatory language addressing this issue. The Department notes that the revised rule incorporates the amended statutory language found in 8 U.S.C. 1324b(a)(6). Charge Processing Issue: A number of commenters raise concerns about paragraph (d) of Sec. 44.301,which allows a 45-day period for a charging party to provide requested information to allow the Special Counsel to determine whether to deem what is initially an inadequate submission a charge. Some commenters believe that there is no statutory support for the use of such a grace period, pointing to what the commenters believe are ``specific and relatively strict filing deadlines.'' Another commenter claims that the proposed revision would ``in practice all but eliminate'' the 45-day period because the Special Counsel could proceed to investigate while waiting for the missing information even if the individual never provides the information. Response: The Department disagrees with these comments and is adopting the language as the Department proposed with no changes. The Department agrees with commenters that the statute requires that the charging party file a charge within 180 days of the alleged unfair immigration-related employment practice. However, the statute also gives the Attorney General broad discretion to determine what information is necessary to constitute a charge. 8 U.S.C. 1324b(b)(1) (``Charges shall be in writing under oath or affirmation and shall contain such information as the Attorney General requires.''). Pursuant to the authority granted in 8 U.S.C. 1324b(b)(1), the Attorney General has provided several ways a charging party can meet its charge filing obligations. First, a charging party can timely file a charge that on its face satisfies the definition of ``charge'' at Sec. 44.101(a). Second, a charging party can file a submission that is ``inadequate to constitute a complete charge as defined in Sec. 44.101(a)'' but then provide additional information to make the charge ``complete.'' Section 44.301(d)(1) and (d)(2). Third, the Special Counsel can deem a submission to ``be a complete charge even though it is inadequate to constitute a charge as defined in Sec. 44.101(a).'' Section 44.301(e). As long as the initial submission is timely, nothing in the statute prevents the Attorney General from later deeming the submission to be a charge. The Department's regulations on the handling of inadequate submissions are consistent with case law interpreting similar statutory language in Title VII. See Edelman v. Lynchburg Coll., 535 U.S. 106, 109 (2002) (upholding an EEOC regulation that permitted ``an otherwise timely filer to verify a charge [[Page 91779]] after the time for filing has expired.''). Like section 1324b, Title VII contains time limits for filing charges. 42 U.S.C. 2000e-5(e)(1). Title VII also contains language nearly identical to the language in 8 U.S.C. 1324b(b)(1). 42 U.S.C. 2000e-5(b) (``Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires.''). Like the Department, the EEOC has promulgated regulations governing what information is required to file a charge. See 29 CFR 1601.12(a) (laying out information to be contained in a charge); 29 CFR 1601.12(b) (providing that notwithstanding the requirements for a charge's contents in paragraph (a), a charge can be ``amended'' to ``cure technical defects or omissions, including failure to verify the charge, or to clarify and amplify allegations made therein'' and that amendments regarding acts ``related to or growing out of the subject matter of the original charge will relate back to the date the charge was first received.''). The Supreme Court in Edelman upheld the EEOC's rule regarding charges filed under Title VII as ``reasonable.'' 535 U.S. at 114. While the Department is adopting regulatory language distinct from that in the EEOC's regulations, the same reasoning supports the Attorney General's authority to determine the information required for a charge and to adopt these regulations regarding charge processing. Moreover, the Department's decision to maintain a 45-day grace period for submitting additional information promotes certainty and finality for respondents and the Special Counsel by using a definite timeframe for the charging party to provide the requested information. The regulations are necessary to prevent the Special Counsel from investigating claims that clearly fall outside of its jurisdiction, while at the same time ensuring that timely-filed meritorious submissions that may be missing some information can still be considered timely. The statute's remedial purpose would be frustrated, and meritorious claims would be foreclosed, if the Special Counsel imposed a harsh and rigid rule requiring dismissal of timely-filed charges that may allege a violation of section 1324b, but that do not initially set forth all the elements necessary to be deemed a complete charge. Issue: One commenter writes in support of Sec. 44.301, which sets forth how the Special Counsel handles submissions and charges received more than 180 days after the date of alleged discrimination. This commenter appears to refer to language in paragraph (g) that provides that the Special Counsel shall dismiss charges and submissions received more than 180 days after the date of alleged discrimination ``unless the Special Counsel determines that the principles of waiver, estoppel, or equitable tolling apply.'' Response: The Department appreciates this comment. As discussed more in the NPRM, these principles are well-established in relevant administrative decisions. See, e.g., Lardy v. United Airlines, Inc., 4 OCAHO no. 595, 31, 73 (1994); Halim v. Accu-Labs Research, Inc., 3 OCAHO no. 474, 765, 779 (1992). Issue: The Department received three comments criticizing the proposed language in Sec. 44.301(g) regarding the acceptance of charges more than 180 days after the alleged violation where principles of waiver, estoppel or equitable tolling apply. One commenter objects to Sec. 44.301(g)'s lack of express language describing the frequency with which the principles of waiver, estoppel, or equitable tolling will apply. Another commenter claims that it is ``not appropriate'' for the Special Counsel ``to accept late filings at its discretion'' because it ``subjects employers to uncertainty and lack of finality.'' A third commenter states that these ```equitable' provisions provide the Special Counsel with immense leeway to obviate the statutory 180- day filing deadline'' in section 1324b. Response: The Department is satisfied that the explanation provided in the preamble and acknowledged by the commenters--that those equitable modifications of filing deadlines would be ``sparingly applied''--is sufficient. Because the Department will make exceptions only rarely, the Department does not agree that this proposed change creates the level of uncertainty and lack of finality that outweighs the need for flexibility in rare circumstances, such as where the charging party's untimely filing was due to circumstances beyond the charging party's control. As noted in the response to the previous comment, these principles are well-established in relevant administrative decisions. Investigation Issue: Some commenters claim that Sec. 44.302 would substantially broaden the Special Counsel's investigatory powers without a legal basis and in a way that would raise constitutional concerns under the Fourth Amendment, all without sufficient explanation as to the reasons. These commenters also cite to In re Investigation of Charge of Estela Reyes-Martinon v. Swift & Co., 9 OCAHO no. 1058 (2000), to assert that the Special Counsel lacks the investigatory power under section 1324b to seek written interrogatory answers or to require that respondents create evidence not yet in existence. Another commenter claims that this new ``broad, sweeping authority'' would allow the Special Counsel to ``subpoena anything, in any format, at any time.'' For example, this commenter asks whether this would mean that ``employers must now keep Forms I-9 for an indefinite period of time,'' a requirement that in this commenter's view could violate other federal and state laws. Response: The Department disagrees with these comments and is adopting the language as proposed with no changes. First, neither the law nor the regulations on their face violate the Fourth Amendment. See United States v. Salerno, 481 U.S. 739, 745 (1987) (Facial challenges are ``the most difficult . . . to mount successfully.''); City of Los Angeles v. Patel, 135 S. Ct. 2443, 2450 (2015) (``[C]laims for facial relief under the Fourth Amendment are unlikely to succeed when there is substantial ambiguity as to what conduct a statute authorizes.''); Sibron v. New York, 392 U.S. 40, 59 (1968) (``The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of an individual case.''). If a person or entity believes that in a particular case the Department is applying the statute or regulations in an unconstitutional manner, they may bring an as-applied constitutional challenge. Second, the Department agrees that while a person or entity being investigated must respond to requests for information and also respond to requests for documents that already exist, the person or entity is not required to otherwise create new documents or to provide documents in a format that does not exist at the time of the subpoena. For example, if an employer does not make and retain copies of Form I-9 documentation, the employer is not obligated to provide copies of Form I-9 documentation, nor should it ask its employees to provide a copy or present their documentation anew to make copies. However, the Department disagrees that the proposed revisions in the NPRM require otherwise. Moreover, Department regulations have allowed the Special Counsel to propound interrogatories since originally promulgated in 1987, which is consistent with the Special Counsel's authority to have, ``in accordance with regulations of the Attorney General[,] . . . reasonable access to examine evidence of any [[Page 91780]] person or entity being investigated.'' 8 U.S.C. 1324b(f)(2). The Department also disagrees with the comment that the Swift decision precludes the Special Counsel from propounding interrogatories. Although these commenters are correct that the ALJ in Swift determined that OCAHO lacked authority to order a party to respond to interrogatories propounded by the Special Counsel, 9 OCAHO no. 1058 at 14, the ALJ also recognized that the Special Counsel might still have the authority to propound interrogatories, id. at 8, 13, and also acknowledged that other OCAHO ALJs had ordered respondents to comply with subpoenas seeking both documents and answers to interrogatories. Id. at 12-13. The ALJ in Swift further acknowledged but declined to follow a prior case, In re Investigation of Strano Farms, in which a different ALJ held that ``the fact that the evidence sought in the subpoena at issue does not currently exist in documentary form does not invalidate the subpoena in question.'' 3 OCAHO no. 521, 1217, 1223 (1993). Because Swift concerned OCAHO authority, not the Special Counsel's authority, and in light of the conflict in case law, the Department does not believe Swift is determinative on this issue. The Department is relying on the broad authority under 8 U.S.C. 1324b(f)(2) and OCAHO case law that supports the Special Counsel's ability to propound interrogatories and, when necessary, seek a subpoena to obtain answers. This is in accord with the Special Counsel's current practice of requesting both documents and information during investigations and obtaining a subpoena from OCAHO as necessary to ensure that the Special Counsel receives needed information and documents. Third, regarding concerns on Form I-9 retention requirements, while an employer being investigated is obligated to maintain potentially relevant documents, which would include Forms I-9, other employers are subject only to the general retention requirements in section 1324a and any other federal, state or local record retention obligations (including any preservation requirements under other investigations/ suits). Issue: One commenter questions why the Department has sought to codify a respondent's preservation obligations in Sec. 44.302(d), asserting that the proposed document retention provisions ``are overly vague, confusing, and unnecessary.'' In particular, the commenter said that ``[t]he proposal gives little guidance to employers concerning how they are to determine what evidence is `potentially relevant' to an allegation or how to apply that `potentially relevant' formulation.'' Response: The Department disagrees with this commenter's suggested conclusions but is providing here additional explanation for the proposals. OCAHO has acknowledged that an employer is on notice of its obligation to preserve potentially relevant evidence when it receives notice of a charge filed against it under section 1324b. See Sefic v. Marconi, 9 OCAHO no. 1123, 13-14 (2007). In Sefic, OCAHO cited to Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 372 (1977), for the proposition that ``unlike a litigant in a private suit who may get notice only when a complaint is filed, a Title VII defendant gets notice of the possibility of a suit when the charge is served.'' Sefic, 9 OCAHO no. 1123 at 14. Paragraph (d) reflects this obligation. Moreover, the paragraph applies the preservation obligation to any alleged unfair immigration-related employment practice, meaning that the respondent has notice of the alleged violation(s) that the Special Counsel is investigating. What constitutes ``potentially relevant'' evidence will vary depending upon the scope of the Special Counsel's investigation and the evidence the employer has. In the context of an investigation by the Special Counsel, potentially relevant evidence will often include evidence relating to a person or entity's recruiting, hiring, employment eligibility verification, and firing policies and practices. As with other types of employment discrimination claims, this may commonly include job applications, personnel records, a person or entity's policies, and applicant flow information. Potentially relevant evidence under section 1324b will also include Forms I-9 along with any attachments, and E-Verify information. The Department notes that these examples are merely illustrative and by no means reflect the universe of what can be considered potentially relevant to an investigation by the Special Counsel. After considering the public comments, the Department is adopting this paragraph as it was proposed. Authority To File OCAHO Complaints Issue: Several commenters disagree with the proposed revision to Sec. 44.303(d) regarding the timeframe for the Special Counsel to file a charged-based complaint with OCAHO. One of these commenters raises a concern that the Department is attempting to extend the applicable statute of limitations for the Special Counsel to file a complaint, rather than clarifying existing statutory limitations. This commenter believes this proposed revision will cause investigations under this law to go ``in perpetuity'' and that the timeframe to file a complaint would be ``excessive and unreasonable.'' The commenter further believes this change will promote abusive and costly litigation and asks the Department to reconsider. A different commenter disagrees with the Department's interpretation of the statutory language, reading the statute to limit the Special Counsel to filing a complaint by the end of the additional 90-day period during which the Special Counsel continues to have the right to investigate the charge and file a complaint. Another commenter states that this proposed revision is ``extremely burdensome and disruptive to employers.'' A different commenter states that ``this puts employers in the position of having to potentially wait years to know whether a claim will be pursued.'' Response: The Department declines to make any changes to Sec. 44.303(d) as proposed because the proposed revision makes no change to the applicable statutory time limits for charge-based complaints filed by the Special Counsel and is consistent with case law under both this law and a similar provision in Title VII. See, e.g., United States v. Agripac, Inc., 8 OCAHO no. 1028, 399, 404 (1999); United States v. Gen. Dynamics Corp., 3 OCAHO no. 517, 1121, 1156-57 (1993); Occidental Life Ins. Co. of Calif. v. EEOC, 432 U.S. 355, 361 (1977). As noted in the NPRM, the proposed revisions simply clarify that the Special Counsel is not bound by the statutory time limits for filing a complaint that are applicable to private actions. Moreover, the Department does not anticipate any significant changes to the speed with which it handles its investigations, and any costs that employers incur as a result of protracted litigation exist regardless of this proposed revision. For the reasons discussed in the NPRM, the Department believes this proposed revision is appropriate. Issue: A number of comments address the proposed revision to Sec. 44.304(b) regarding the timeframe for the Special Counsel to file a complaint with OCAHO based on an investigation opened at the Special Counsel's initiative. One commenter expresses support for the proposed revision, stating that ``[i]t is in the interest of all parties-- employers, employees, and OSC--if this filing deadline is removed so that OSC can thoroughly and accurately investigate a case before formally filing a case against an employer.'' This commenter also states that ``nothing in the Immigration and [[Page 91781]] Nationality Act . . . provides for a filing deadline for these cases'' and ``[t]he [EEOC], a sister federal agency that protects against employment discrimination, has no similar filing deadline.'' Several commenters are critical of the proposed revision. Some commenters believe ``[t]he Special Counsel's time to bring a complaint and the scope of that complaint should be consistent with Congress' clear directive in Section 1324b(d)(3).'' These commenters appear to believe that because the statute lays out a clear timeframe for filing charges, there should be a comparable limit on the timeframe imposed on the Special Counsel for filing a complaint. One commenter disagrees with the Department's reading of the statute, insisting that it requires the Special Counsel to file a complaint within 180 days of the discriminatory act. Another commenter argues that the NPRM inappropriately relies on Agripac, Inc., 8 OCAHO no. 1028, and General Dynamics Corp., 3 OCAHO no. 517, for the proposition that ``the statute contains no time limits for an independent investigation.'' This commenter similarly dismisses the Department's reliance on Occidental Life Insurance, 432 U.S. 355. Other commenters point to the original regulatory text as support for why the Department cannot revise that regulatory text to align more closely with the statutory text. Response: The Department declines to make any change to Sec. 44.304(b) as proposed. As discussed in the NPRM, the most reasonable application of 8 U.S.C. 1324b(d)(3), which specifies that ``[n]o complaint may be filed respecting any unfair immigration-related employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel,'' is that the Special Counsel may not file a complaint unless the Special Counsel opened an investigation on the Special Counsel's own initiative pursuant to 8 U.S.C. 1324b(d)(1) within 180 days of the last known act of discrimination, as the opening of the Special Counsel's investigation is the nearest equivalent to the filing of a charge. This reading of the statute is also supported by case law. See United States v. Fairfield Jersey, Inc., 9 OCAHO no. 1069, 5 (2001) (acknowledging the absence of a statutory time limitation for the filing of a complaint arising out of an independent investigation). Furthermore, in the NPRM the Department cited to Agripac, General Dynamics Corporation, and Occidental Life Insurance when discussing the Special Counsel's time limits for filing a charge-based complaint, not--as one commenter suggests--when discussing the Special Counsel's time limits for filing a complaint based on an independent investigation that the Special Counsel opened pursuant to 8 U.S.C. 1324b(d)(1). The Department agrees with the commenter that Agripac was not based on an independent investigation opened pursuant to 8 U.S.C. 1324b(d)(1). The Department cited to Agripac and General Dynamics Corporation in the NPRM for the broader proposition that the Special Counsel is not bound by the statutory time limits that are applicable to individuals filing private actions, and cited to Occidental Life Insurance as instructive given the similar charge-filing procedures and virtually identical timetables found in Title VII. The Department has considered the view expressed by this commenter. However, the Department is not changing its long-held interpretation of 8 U.S.C. 1324(d)(3), but rather, is conforming the regulatory text to more closely align with the statutory text. Issue: Some commenters object more broadly to the clarified time limitations for the Department to file a complaint, based on a view that the timelines are contrary to public policy. In particular, these commenters state that a longer deadline for the Department to file complaints would interfere with the availability of witnesses, employers' ability to preserve evidence, and witnesses' ability to recall the events in question, and would burden employers by requiring a longer document retention period. A number of commenters also object to the Department's reliance on a five-year limitations period under 28 U.S.C. 2462 for bringing actions to impose civil penalties. Response: The Department will make no changes to its clarified time limitations for filing a complaint in either Sec. 44.303(d) or Sec. 44.304(b) and is adopting these subsections as proposed with no changes. These timelines are consistent with the statute and OCAHO case law cited in the NPRM and discussed in the prior comment response above. In addition, section 1324b is aimed at stopping discriminatory practices and providing redress for victims of discrimination. In the Department's view, public policy would not be served by imposing time limitations on this remedial statute that are unsupported by the statutory language. Furthermore, any delays or costs associated with protracted litigation exists independent of this proposed revision. Finally, the Department's reliance on 28 U.S.C. 2462 for imposing a time limit for the Special Counsel to bring an action involving civil penalties is not new, but rather, reflects the Department's long- standing position regarding the outer time limits imposed on the Special Counsel. As discussed in the NPRM, similar to the EEOC, the Special Counsel is still bound by equitable limits on the filing of a complaint. See EEOC v. Propak Logistics, Inc., 746 F.3d 145 (4th Cir. 2014). Other Comments Issue: Two commenters express support for reforming U.S. immigration laws and in particular reforming immigration laws for employment-based visas. One commenter raised concerns about the wait times for beneficiaries of employment-based visas. Response: These comments fall outside the scope of this rule. The proposed revisions implemented by this final rule do not change U.S. immigration laws or the employment-based visa process, including wait times. The proposed revisions implement existing law prohibiting unlawful employment discrimination based on citizenship status or national origin. Issue: One commenter raises concerns about the Form I-9 employment eligibility verification process and asked that ``everyone, federal agencies, employers and employees, lawyers, Congress, etc. should together establish a timely efficient effective employment verification process, or scrap it.'' Response: USCIS, within DHS, publishes the Form I-9 and accompanying guidance and determines which documents are acceptable for employment eligibility verification, pursuant to the requirements of 8 U.S.C. 1324a. This issue falls outside the scope of this rule and the Department refers the commenter to USCIS for more information on this issue. Issue: One commenter seeks guidance on whether an employer may refuse to accept for employment eligibility verification purposes a driver's license or identification card issued by a state that does not have ``citizenship requirements.'' Response: USCIS publishes the Form I-9 and accompanying guidance and determines which documents are acceptable for employment eligibility verification. This issue falls outside the scope of this rule and the Department refers the commenter to USCIS for more information on this issue. Issue: One commenter requests guidance on the issue of states recognizing other states' driver's licenses and ``certifications'' as ``valid [[Page 91782]] eligibility'' for individuals to obtain licenses in a state where a particular immigration status may otherwise disqualify that individual. Response: This issue falls outside the scope of this rule and the Department refers the commenter to USCIS for more information on this issue. Regulatory Procedures Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) The rule has been drafted and reviewed in accordance with Executive Order 12866 (Sept. 30, 1993), and Executive Order 13563 (Jan. 18, 2011). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other effects; distributive impacts; and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits (while recognizing that some benefits and costs are difficult to quantify), reducing costs, harmonizing rules, and promoting flexibility. Under Executive Order 12866, the Department must determine whether a regulatory action is ``significant'' and, therefore, subject to the requirements of the Executive Order and Office of Management and Budget (OMB) review. Section 3(f) of Executive Order 12866 defines a ``significant regulatory action'' as any regulatory action that is likely to result in a rule ``that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.'' The Department has determined that the rule is not an economically significant regulatory action under section 3(f)(1) of Executive Order 12866 because the Department estimates that its annual economic impact will be a one-time, first-year-only cost of approximately $28.0 million--far less than $100 million. The Department has quantified and monetized the costs of the rule over a period of 10 years (2017 through 2026) to ensure that its estimate captures all major benefits and costs, but has determined that all quantifiable costs will be incurred only during the first year after the regulation is implemented. Because the Department was unable to quantify the benefits of the rule due to data limitations, the benefits are described qualitatively. The Department considered the following factors when measuring the rule's impact: (a) Employers familiarizing themselves with the rule, (b) employers reviewing and revising their employment eligibility verification policies, and (c) employers and employees viewing training webinars. The largest cost is the cumulative costs that employers would have to incur to review and revise their employment eligibility verification policies, which the Department estimates to be $17,858,003. The next largest cost is the cost employers would have to incur to familiarize themselves with the rule, which the Department estimates to be $10,132,200. The economic analysis presented below covers all employers with four or more employees, consistent with the statute's requirement that a ``person or entity'' have more than three employees to fall within the Special Counsel's jurisdiction for citizenship status and national origin discrimination in hiring, firing, and recruitment or referral for a fee. 8 U.S.C. 1324(a)(2). In the following sections, the Department first presents a summary of the public comments received on the economic analysis, the Department's responses to these comments, and changes made to the estimation of the costs of this rule in response to those comments. Next, the Department presents a subject-by-subject analysis of the costs of the rule. The Department then presents the undiscounted 10- year total cost ($28.0 million) and a discussion of the expected benefits of the rule. Because the costs are incurred entirely in the first year, they are not discounted. The Department did not identify any transfer payments associated with the provisions of the rule. Transfer payments, as defined by OMB Circular A-4, are ``monetary payments from one group to another that do not affect total resources available to society.'' OMB Circular A-4 at 38 (Sept. 17, 2003). Transfer payments do not result in additional costs or benefits to society. In the subject-by-subject analysis, the Department presents the labor and other costs for each provision of the rule. Exhibit 1 displays the labor categories that are expected to experience an increase in the level of effort (workload) due to the rule. To estimate the cost, the Department multiplied each labor category's hourly compensation rate by the level of effort. The Department used wage rates from the Mean Hourly Wage Rate calculated by the Bureau of Labor Statistics.\1\ Wage rates are adjusted using a loaded wage factor to reflect total compensation, which includes health and retirement benefits. The loaded wage factor was calculated as the ratio of average total compensation to average wages in 2015, which resulted in 1.44 for the private sector.\2\ The Department then multiplied the loaded wage factor by each labor category's wage rate to calculate an hourly compensation rate. --------------------------------------------------------------------------- \1\ Bureau of Labor Statistics, December 2015 National Occupational Employment and Wage Estimates: United States (Mar. 10, 2016), http://www.bls.gov/schedule/archives/ecec_nr.htm#2015. \2\ The Department calculated average total compensation by taking the average of the cost of total compensation for all workers in December, September, June, and March of 2015 (($31.70 + $31.53 + $31.39 + $31.65)/4 = $31.57), and calculated average wages by taking the average of the cost of wages and salaries for those employees in each of those four months (($22.14 + $21.98 + $21.82 + $21.94)/4 = $21.97). See data retrieved from the BLS data retrieval tool, Private Industry Total Compensation for All Occupations and Private Industry Wages and Salaries for All Occupations, http://data.bls.gov/cgi-bin/surveymost?cm). (http://www.bls.gov/schedule/archives/ecec_nr.htm.) The Department then calculated the loaded wage factor by taking the ratio of average total compensation to average total wages ($31.57/$21.97 = 1.44). [[Page 91783]] Exhibit 1--Calculation of Hourly Compensation Rates ---------------------------------------------------------------------------------------------------------------- Hourly Position Average Loaded wage compensation hourly wage factor rate a b c = a x b ---------------------------------------------------------------------------------------------------------------- Human Resources Manager......................................... $56.29 1.44 $81.0576 Attorney........................................................ 65.51 .............. 94.3344 ---------------------------------------------------------------------------------------------------------------- 1. Public Comments on Regulatory Assessment and Department Responses This section discusses public comments to the economic analysis that accompanied the proposed rule, the Department's responses to those comments, and changes made to the estimation of costs of this rule in response to those comments. The Department received 24 comments related to the economic analysis accompanying the proposed rule. However, 18 of these comments had similar, although not identical, text. The remaining six comments presented unique input on the economic analysis. a. Comments Regarding the Number of Employers Affected by the Rule Many commenters disagreed with the methodology included in the economic analysis for estimating the number of impacted employers. The commenters indicated that the Department has underestimated the number of impacted employers because it used a basis of the number of organizational members of the Council for Global Immigration (CFGI) and the Society for Human Resource Management (SHRM), totaling 56,685 firms. The commenters suggested using data from the U.S. Census of Business, compiled by the Office of Advocacy of the U.S. Small Business Administration (SBA), which shows that there were 2,182,169 firms with more than four employees in 2012, the most recent year for which the data is available. Relying on 2012 U.S. Census Bureau data, one commenter indicated that 3,916,991 employers with at least five employees should be included in the analysis. The commenter stated that it is not reasonable to limit the analysis to organizations with developed human resources practices because, regardless of whether an organization has developed human resources practices, it can be held accountable for unfair immigration-related unfair employment practices. One commenter asserted that the number of organizational members of CFGI and SHRM should not be the basis for the number of impacted employers because those associations do not represent the entire universe of employers with developed human resource practices, which is equal to approximately 2 million employers. For purposes of calculating rule familiarization costs, one commenter stated that firms with fewer than four employees should be included because these firms will have to familiarize themselves with the rule to figure out its scope and how changes to their business would impact the applicability of the rule. For purposes of calculating the costs to review and revise existing policies, procedures, and management training materials, one commenter indicated that either the SBA data on covered employers should have been used (i.e., 2,182,169 firms) or the Department should have taken the readily available information from USCIS about employers using the E-Verify system (more than 600,000 employers) to estimate better the number of employers likely to have some formal employment eligibility verification policy. The Department does not agree that all employers covered by the law should be included to estimate the costs of the rule, nor does the Department agree that all E-Verify employers or all employers with fewer than four employees should be included. The revisions to the current regulations are meant to clarify obligations that employers already have under the statute and current regulations, and do not impose new burdens for compliance. The number of employers that will be impacted by the revisions to the current regulations is limited to those employers that have sufficiently detailed policies for avoiding discrimination under section 1324b such that the revisions will require them to review and update their policies. Many E-Verify and other employers may have basic policies in place for the proper administration of the Form I-9 and E- Verify processes, and many employers may have anti-discrimination policies concerning hiring and firing. In the Department's experience investigating discrimination claims, however, and in the Department's experience educating employers through its hotline and other training opportunities, few employers already have policies in place governing how to avoid the types of discrimination covered by section 1324b. In the Department's experience, even fewer employers already have policies that describe information about the Special Counsel's complaint-filing deadlines, charge-filing procedures, and definitions of statutory terms, as this type of information does not typically relate to the duties of human resources professionals, which are at the heart of the revisions. Accordingly, the Department estimates that very few employers-- including E-Verify employers--have employment policies so detailed that they will require revisions to their policies. Within the small group of employers that have detailed discrimination policies that describe employer obligations under section 1324b, a smaller number of employers may include the name of the office that enforces this statute in their written policies. Similarly, in the Department's experience, very small employers--those with fewer than four employees--are least likely to have developed policies relating to discrimination under section 1324b in part because their size makes it much less likely that they employ a full-time human resources professional dedicated to developing and implementing policies, but also because section 1324b clearly limits jurisdiction for discrimination in hiring, firing, and recruitment or referral for a fee to employers with four or more employees. The Department also disagrees that the appropriate number of employers is the number of E-Verify users because, in the Department's experience regularly educating and working with these employers, E- Verify employers are not necessarily more likely to have detailed written policies relating to section 1324b that will require any updates based on the revisions made to the existing regulations. [[Page 91784]] b. Comments Regarding the Methodology for Estimating the Number of Organizations Represented Among CFGI and SHRM Membership To determine the number of employers affected by the rule, the analysis assumed that the same ratio of organizational members to individual members existed for CFGI and SHRM. A commenter stated that it is not accurate to assume that the ratio of CFGI individual contacts to organizational members is the same as the ratio of SHRM individual members to the number of organizations that employ them. The commenter asserted that the more accurate estimate of the number of organizations represented in SHRM's membership is 125,000, rather than 56,455 organizations. The Department will adopt the number of estimated organizational members that SHRM and CFGI provided, which is 125,000. The Department believes that the number of organizational members of SHRM and CFGI provides the best estimate of the number of employers likely to have detailed written policies discussing employer obligations under section 1324b. The Department reasonably expects that most of the limited number of employers that already have policies discussing employer obligations under section 1324b will be unlikely to have to make any revisions to those policies. The reason for this is that the revisions do not impose any new compliance obligations. The Department requested membership information from SHRM and CFGI before the publication of the NPRM and appreciates receiving that information now. c. Comments Regarding the ``Upfront, One-Time Cost'' Assumption A commenter expressed disagreement with the assumption that the rule imposes an ``upfront, one-time cost.'' Instead, the commenter indicated that in addition to the costs of initial implementation, employers will incur legal costs and training costs every time they are presented with a unique situation that is not covered by the employer's general policy against discrimination, e.g., any acknowledgment of citizenship status during the hiring process. The Department does not agree that there will be ongoing training costs because the costs described by the commenter relate not to burdens that are imposed by the revisions to the current regulations, but instead relate to the overall burden of compliance. As noted, employers have the same obligations under the statute and current regulations not to discriminate or retaliate. d. Comments Regarding the Estimated Costs for Implementation of the Rule A commenter stated that the Department significantly underestimates the number of employees who will be involved in reading, reviewing, and making changes to policies by assuming that only one human resources manager per employer will do so. The commenter asserted that it is almost certain that more people will be involved in making these changes, including supervisors and, in many cases, in-house and outside counsel. Additionally, the commenter asserted that after changes are made, all employees involved in the hiring process will have to be brought up to speed, which will necessitate additional training. The commenter also asserted that the Department underestimates the amount of time required to review the rule, revise policies, and update staff on the new regulation and policies. In particular, this commenter pointed to the SHRM Knowledge Center five-step process for developing human resources policies as instructive for assessing the appropriate amount of time needed for an entity to revise current policies based on the regulatory changes. The Department does not agree that, for most employers, more than one staff member needs to be involved in reading, reviewing, and making changes to policies as a result of the rule. Although employers may have different experiences in implementing HR updates, the Department estimates, based on its experience with entities covered by this law, that on average, only one individual will be involved in making the few if any changes. Instead, it appears that the commenters are concerned about reviewing and educating themselves about existing obligations to prevent discrimination, which relates to compliance with the law in general but not the changes in the rule. For example, employers are already prohibited from discriminating in hiring, firing, and recruiting or referring for a fee based on citizenship status and national origin. Also, employers already must allow each employee to choose which valid documentation to provide for employment eligibility verification purposes, regardless of citizenship status or national origin. If an employer decides to create a new policy explaining those obligations and train its staff accordingly, these costs are not tied to changes promulgated in this rule but instead to obligations that have existed since at least 1996 and in some cases 1986. The Department does not agree that additional training is required for the changes promulgated through this rule because relatively few employers have sufficiently detailed policies that would be impacted by revisions to the current regulations. Although the Department recognizes that employers may have different practices, the Department does not believe, based on its experience with covered entities, that, in general, more than one-and- a-half hours is required to review the new rule and update policies that require revisions. In the Department's view, the five-step process cited by one commenter for developing human resources policies would not apply in this context. The first step in the five-step process, which is ``identifying the need for a policy,'' is inapplicable because an entity should be assessing the need for a policy based not on these regulatory changes but based on the entity's legal obligations required by statute. Likewise, the second step, ``determine policy content,'' would flow not from these regulatory revisions but from the statute. The Department similarly disagrees that steps three and four--obtaining stakeholder support and updating staff about the regulatory changes-- should be factored into this calculation, as staff seeking to comply with their statutory and current regulatory obligations would not need to be updated on these types of regulatory revisions and, as discussed throughout this rule, the revisions to the regulations create no new obligations. While the fifth step, which involves updating and revising the policy, may apply in some instances, the Department has accounted for this in its assessment of one-and-a-half hours for reviewing and revising policies. e. Comments Regarding the Estimated Cost for Training A commenter stated that the estimated training costs are based on untenable assumptions. Specifically, the commenter expressed disagreement that only 347 people would receive the training. Instead, the commenter indicated that it should be assumed that one employee for each of the affected employers would take the one-hour training. Also, the commenter stated that the training cost component will not be a one-time cost item but, instead, will be a recurring cost as new or replacement managers are hired. Additionally, the formation of new employer companies will trigger future additional training costs. Similarly, [[Page 91785]] another commenter stated that the Department fails to account for the significant staff time that will be required to ensure that those involved in the hiring process are aware of the new regulation and policies and, therefore, underestimates the training cost of this rule ``by many orders of magnitude.'' The Department does not agree with the assertions by these commenters and has already addressed three of these four issues above in responses to other comments. In response to concerns about training costs to new employers, the Department also does not agree that the formation of new employers requires additional costs. When an employer is formed, the employer should learn of its obligations under various employment, labor, and other laws, but the changes promulgated through this rule likely have no effect on new employers because they do not alter employers' core obligations to comply with section 1324b, and any training on these obligations would have occurred anyway--regardless of this rules' changes to the current regulations. For example, learning about the name of the office that enforces section 1324b is less critical than an employer learning about its core statutory obligations not to discriminate. A new employer would have no need to revise any policies to reflect the narrow changes in this rule because the employer could simply prepare a policy that incorporates longstanding obligations not to discriminate unlawfully based on citizenship status or national origin, and not to retaliate. In response to concerns that the training cost is a recurring cost as new or replacement managers are hired, the Department does not agree. For the same reasons that a new employer would not incur costs flowing from the changes to the regulations, a new or replacement manager would need training on the employer's core obligations to comply with section 1324b and not training to understand the changes between the previous and current regulations. f. Comments Regarding Specific Costs Not Accounted for in the Economic Analysis A commenter stated that the Department does not account for (1) increases in legal fees and penalties for defending discrimination claims due to the new regulation, or (2) additional costs for document retention employers will incur due to changes in the statute of limitations for the Special Counsel to file a charge. The Department does not agree that there is sufficient basis for the assertion that the revisions will cause an increase in legal fees and penalties. The revisions make no change to the applicable statutory time limits for charge-based complaints filed by the Special Counsel and are consistent with case law under both this law and Title VII. Moreover, the Department does not anticipate any significant changes to the speed with which it handles its investigations, and any costs that employers incur as a result of protracted litigation exist regardless of this revision. Moreover, the Department currently extends investigation times through stipulations with respondents and, when needed, by seeking leave from the Office of the Chief Administrative Hearing Officer (OCAHO). Finally, the Special Counsel has filed nine lawsuits in the last five years combined and has entered into a total of 100 settlements during that same period. Thus, a relatively small number of employers are affected by litigation costs, and these employers have no basis to expect that the revisions would increase the level of litigation. If anything, the revisions would better assist employers in understanding the case law that is reflected in the revisions, helping them to comply with the law and avoid litigation altogether. Moreover, the Department makes many free resources available to employers to assist them with compliance, including (1) a public Web site containing an employer tab with over 20 employer guidance documents, a frequently asked questions section, free educational videos, and technical assistance letters; (2) a toll-free employer hotline; and (3) free hardcopy educational materials distributed in many forums. Employers investigated by the Special Counsel already have document retention requirements, and the revisions do not change those requirements. Those requirements end once a matter is resolved, after the conclusion of any monitoring period, which ordinarily takes two to three years. Employers that are not subject to an investigation by the Special Counsel would continue to operate under their existing retention policies. The commenters did not provide estimates for these additional retention requirements. g. Other General Comments on the Economic Analysis A few commenters stated that the NPRM does not satisfy the requirements of the Regulatory Flexibility Act or that it underestimates the impacts of the rule on employers. A commenter stated that the rule exceeds the $100 million threshold under the Regulatory Flexibility Act requirements, arguing that the rule should be further analyzed by the Office of Information and Regulatory Affairs within OMB. The commenter, however, did not provide an explanation for how the commenter arrived at this estimated amount. Accordingly, the Department is unable to analyze the specifics of the commenter's comment and therefore declines to agree with this comment and instead relies upon its own analysis of the economic impact of these revisions, and as discussed in responses provided above to other comments. 2. Subject-by-Subject Analysis a. Employers Familiarize Themselves With the Rule During the first year of the rule, employers with a developed human resources practice will need to read and review the rule to learn about the new requirements. The Department determined that no costs will be incurred by employers to familiarize themselves with the rule in years two through ten because (1) the cost for an existing employer to familiarize itself with the rule if it delays doing so until a subsequent year is already incorporated into the first-year cost calculations; and (2) for employers that are newly created in years two through ten, the cost of familiarization is the same as exists under the current regulations and, therefore, there is no incremental cost. Employers will incur labor costs to familiarize themselves with the new rule. To estimate the labor cost of this provision, the Department first estimated the number of employers that will need to familiarize themselves with the rule by relying on the number of organizational members in CFGI and SHRM.\3\ The Department used the number of organizational members in these two organizations as a proxy for the number of employers with a developed human resources practice that can be expected to institutionalize the regulatory changes. --------------------------------------------------------------------------- \3\ The Department obtained the estimated number of organizational members in CFGI and SHRM, 125,000, directly from these two organizations in their comment in response to the economic analysis accompanying the proposed rule. The estimated total number of employers is 125,000. --------------------------------------------------------------------------- The Department then multiplied the estimated number of employers by the assumed number of human resources managers per employer, the time required to read and review the new rule, and the hourly compensation rate. [[Page 91786]] The Department estimated this one-time cost to be $10,132,200.\4\ --------------------------------------------------------------------------- \4\ The Department estimated the cost of this review by multiplying the estimated number of employers (125,000) by the number of HR managers per employer (1), the time needed to read and review the rule (1 hour), and the hourly compensation rate ($81.0576). This calculation yields a labor cost of $10,132,200. --------------------------------------------------------------------------- b. Employers Review and Revise Employment Eligibility Verification Policies The rule will require some employers to revise their employment eligibility verification policies. Although under 8 U.S.C. 1324a, all U.S. employers must properly complete a Form I-9 for each individual they hire for employment in the United States to verify the individual's identity and employment authorization, only a subset of employers has detailed written policies specifically addressing compliance with section 1324b. The Department assumed that these employers would be in the practice of saving their policies in an electronic format that can be readily modified. For the policy revisions, employers will complete a simple ``search-and-replace'' to update the agency's name and possibly replace the term ``documentation abuse(s)'' with ``unfair documentary practice(s).'' Only a very limited subset of those employers that have detailed written employment eligibility verification policies will need to make additional modifications to their policies. The Department estimated costs only for those employers that have written employment eligibility verification policies and that will review their policies and make changes as needed. The time involved will depend on the changes employers need to make, whether those changes need to be made to one or more documents or resource materials, and how many sections of the policy will need to be modified. Employers with policies for verifying employment eligibility (and possibly employers with hiring or termination policies, even if they lack policies for verifying employment eligibility) might conduct a front-to-back review of their policies to determine whether any additional changes are needed. These changes and reviews will represent an upfront, one-time cost to employers. The Department estimates this cost as the sum of the cost of revising the policies by making word replacements; the cost, for some employers, of making additional changes beyond word replacements; and the cost of conducting a front-to-back review of the employment eligibility verification policies. To estimate the labor cost for making word replacements to the employment eligibility verification policies, the Department first estimated the number of employers that will make these revisions because of the rule by relying on the number of organizational members in SHRM and CFGI. The Department then multiplied the estimated number of employers by the assumed number of human resources managers per employer, the time required to make the revisions, and the hourly compensation rate.\5\ This calculation yields $2,533,050 in labor costs related to revising employment eligibility verification policies in the first year of the rule. Dollar values presented in this section may not sum because of rounding error. --------------------------------------------------------------------------- \5\ To estimate the cost of making revisions, the Department multiplied the estimated number of employers (125,000) by the assumed number of human resources managers per employer (1), the hourly compensation rate ($81.0576), and the time required to make the revisions (0.25 hours). This calculation results in a cost of $2,533,050. --------------------------------------------------------------------------- To estimate the additional cost to those employers making changes beyond word replacements in the first year of the rule, the Department assumed that 5 percent of employers (i.e., the number of organizational members in CFGI and SHRM) will make these changes. The Department then multiplied the number of employers that will make these additional changes by the assumed number of human resources managers per employer, the time required to make the changes, and the hourly compensation rate. This calculation yields $126,653 in labor costs in the first year of the rule.\6\ --------------------------------------------------------------------------- \6\ To estimate the cost of making changes beyond word replacements, the Department first calculated the number of employers that will make these changes. The Department obtained the number of employers that will make these additional changes by multiplying the number of affected employers (125,000) by the assumed percentage of employers that will make these additional changes (5%). This calculation yields the number 6,250. The Department then multiplied that number of employers (6,250) by the number of human resources managers per employer (1), the hourly compensation rate ($81.0576), and the time required to make the changes (0.25 hours). This calculation results in a cost of $126,653. --------------------------------------------------------------------------- To estimate the cost of conducting a front-to-back review of the policies for verifying employment eligibility (or hiring and termination policies), the Department multiplied the number of employers (i.e., the number of organizational members in CFGI and SHRM) by the number of human resources managers per employer, the time required for a review, and the hourly compensation rate. This calculation yields $15,198,300 in labor costs in the first year of the rule.\7\ --------------------------------------------------------------------------- \7\ To estimate the cost of reviewing the policies, the Department assumed, out of an abundance of caution, that all of the employers affiliated with CFGI or SHRM will dedicate one human resources manager to conduct a front-to-back review of their policies. Accordingly, the Department multiplied the number of employers (125,000) by the assumed number of human resources managers per employer (1), the hourly compensation rate ($81.0576), and the time required to review the policies (1.5 hours). This calculation results in a cost of $15,198,300. --------------------------------------------------------------------------- In total, the one-time costs to employers to revise policies for verifying employment eligibility by making word replacements, to make additional changes beyond word replacements for some employers, and to conduct a front-to-back review of those policies, are estimated to be $17,858,003 ($2,533,050 + $126,653 + $15,198,300) during the first year of rule implementation. c. Employers and Employees View Training Webinars To assist employers, employees, attorneys, and advocates in understanding the changes resulting from the rule, during the first year of implementation, as a part of the Department's ongoing educational webinar series, the Department expects to schedule three live, optional employer training webinars per month and one live, optional advocate/employee training webinar per month. These live one- hour training webinars will cover the full spectrum of employer obligations and employee rights under the statute. The Department also expects to create three one-hour recorded webinars: One for employers and their representatives and two for employees and their representatives (one in English and one in Spanish). All of these resources will be accessible, including to persons with disabilities, online at no cost to the public including employers. They will be accessible remotely and will not require travel. The Department anticipates that participation will occur mostly through viewings of the one-hour recorded webinars. The recorded training webinars developed to explain the post-rule regulatory and statutory obligations and rights will eventually replace the Department's existing live webinars. Therefore, the Department has calculated these costs for employers, employees, and their representatives to be incurred in the first year when learning about the changes, whether through a live or recorded training webinar. After that, newly-created employers will be viewing training webinars instead of (not in addition to) viewing current webinars, with no incremental costs incurred. Periodically, [[Page 91787]] the Department may update the webinar content in light of legal and policy developments, and may publish supplemental educational materials for employer and employee audiences on its Web site, including in other languages. To estimate the cost to employers of viewing training webinars, the Department summed the labor costs for those viewing live webinars and the labor costs for those viewing recorded webinars. To estimate the number of employers viewing the live webinars, the Department used statistics on the average number of employer participants in live webinars. To estimate the number of employers viewing a recorded webinar, the Department used data on the number of viewings of the Department's educational videos about employer obligations under 8 U.S.C. 1324b that are posted on YouTube. Both estimates assume a 15- percent increase in participation following the implementation of the rule.\8\ The Department multiplied the number of employers expected to view a webinar (represented by their human resources managers) by the hourly compensation rate, the time required to view a webinar, and the number of training webinars in the first year for both live and recorded webinars. The total one-time cost to employers for viewing live and recorded webinars is estimated to be $27,316.\9\ --------------------------------------------------------------------------- \8\ On average, 44.7 individuals participate in live webinars for employers. The Department assumed that there will be a 15- percent increase in the number of participants following the implementation of the rule. Thus, the Department estimated costs for seven employers (i.e., 15 percent of the 44.7 individuals) related to viewing the live webinar. On average, 567 individuals have viewed each of the educational YouTube videos. Thus, the Department estimated costs for 85 employers (i.e., 15 percent of the 567 individuals) related to viewing the recorded webinar. \9\ The Department estimated the cost of viewing the live webinars by taking the product of the number of employer representatives (human resources managers) viewing the live webinar (7), the hourly compensation rate ($81.0576), the number of webinars per year (36), and the time required to view the webinar (1 hour). This yielded a cost of $20,427. The Department then estimated the cost of viewing the recorded webinars by taking the product of the number of employer representatives (HR managers) viewing the recorded webinars (85), the hourly compensation rate ($81.0576), the number of webinars (1), and the time required to view the webinar (1 hour). This yielded a cost of $6,890. The total cost of viewing webinars was estimated by taking the sum of the cost of viewing live webinars and the cost of viewing recorded webinars, to obtain a total cost of $27,316. --------------------------------------------------------------------------- To estimate the cost to employees of viewing live training webinars, the Department used existing statistics on the average participation of employees. To estimate the cost to employees of viewing recorded webinars, the Department used the employer-to-employee ratio of participation in the live webinars and applied it to the number of views of the Department's educational videos on the Web site www.YouTube.com. Both estimates assume a 5-percent increase in participation following the implementation of the rule.\10\ These estimates are based upon only the webinars recorded in English because the Department does not expect an increase in the number of views of the Spanish webinars following the implementation of the rule. In the Department's experience, in many cases the live Spanish webinars that have been offered have been canceled due to lack of attendees. In other cases, the Spanish webinars proceeded but with a turnout of fewer than ten participants, who are typically employees (identified as employees by the type of questions they ask or by their registrations with personal email addresses). The Department multiplied the number of employees expected to view webinars (represented by their attorneys) by the hourly compensation rate, the time required to view a webinar, and the number of training webinars in the first year for both live and recorded webinars. The Department estimates a total and aggregate one- time cost of $1,887 for viewing live or recorded advocate/employee webinars.\11\ --------------------------------------------------------------------------- \10\ On average, 12 individuals participate in live webinars for employees. The Department assumed that there will be a 5-percent increase in individuals following the implementation of the rule. Thus, the Department estimated costs for one employee (i.e., 5 percent of the 12 individuals) related to viewing the live webinars. On average, 567 individuals viewed the educational YouTube videos. The Department assumed the same proportion of employees-to-employers viewing the live webinars (0.268 = 12/44.7) will view the recorded webinars. This number will translate to 152 employees or employee advocates viewing the educational YouTube videos. Thus, the Department estimated costs for 8 employees (i.e., 5 percent of the 152 individuals) related to viewing the recorded webinar. \11\ The Department estimated the cost of viewing live webinars by taking the product of the number of employee representatives (captured by the attorney occupational category) viewing the live webinar (1), the hourly compensation rate ($94.3344), the number of webinars (12), and the time required to view the webinar (1 hour). This resulted in a cost of $1,132. The Department then estimated the cost of viewing recorded webinars by taking the product of the number of employee representatives, assumed to be an attorney, viewing the recorded webinar (8), the hourly compensation rate ($94.3344), the number of webinars (1), and the time required to view the webinar (1 hour). This resulted in a cost of $755. The total cost of viewing webinars was estimated by taking the sum of the cost of viewing live webinars and the cost of viewing recorded webinars, to obtain a total cost of $1,887. --------------------------------------------------------------------------- Accordingly, the Department estimates the total one-time cost to employers and employees of viewing live and recorded webinars to be $29,203 ($27,316 + $1,887). d. Benefits of the Rule The Department was not able to quantify the benefits of the rule due to data limitations, particularly the difficulties in calculating the amount of time employers will save from the rule. Several benefits to society will result, however, from the rule, including the following: Helping employers understand the law more efficiently. The Department projects that the regulatory changes will reduce the time and effort necessary for employers to understand their statutory obligations by incorporating well-established administrative decisions, the Department's long-standing positions, and statutory amendments into the regulations. Increasing public access to government services. The regulatory changes will streamline the charge-filing process for individuals alleging discrimination. For example, the criteria needed to satisfy the definition of a ``charge'' have been reduced, and members of the public can now file charges electronically. Eliminating public confusion regarding two offices in the Federal Government with the same name. The regulatory changes will reflect the change in the name of the office responsible for enforcing 8 U.S.C. 1324b from the Office of Special Counsel for Immigration-Related Unfair Employment Practices to the Immigrant and Employee Rights Section, thereby eliminating delays in processing submissions that currently occur due to confusion associated with having two Offices of Special Counsel in the Federal Government.\12\ --------------------------------------------------------------------------- \12\ In addition to the Office of Special Counsel for Immigration-Related Unfair Employment Practices located in the Department's Civil Rights Division by 28 CFR 0.53, Congress has established an Office of Special Counsel charged with protecting employees, former employees, and applicants for employment from prohibited personnel practices, among other functions. See 5 U.S.C. 1211-1212. --------------------------------------------------------------------------- Regulatory Flexibility Act and Executive Order 13272 (Consideration of Small Entities) The Regulatory Flexibility Act (RFA), 5 U.S.C. 603, and Executive Order 13272 (Aug. 13, 2002), require agencies to prepare a regulatory flexibility analysis of the anticipated impact of a regulation on small entities. The RFA provides that the agency is not required to prepare such an analysis if an agency head certifies, along with a statement providing the factual basis for such [[Page 91788]] certification, that the regulation is not expected to have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). Based on the following analysis, the Attorney General certifies that this rule will not have a significant economic impact on a substantial number of small entities. The Department's analysis focused on small businesses or nonprofits with 20 to 499 employees. The Department assumed that small businesses or nonprofits with fewer than 20 employees would not have a detailed written policy addressing compliance with 8 U.S.C. 1324b. The Department assumed that, in total, 125,000 entities will be affected by the rule. Of those 125,000 affected entities, the Department estimated that 62,500 entities will be small employers.\13\ Dividing the affected population (62,500) by the total number of small businesses and non-profits (664,094), the Department estimates that the rule will impact 9.4 percent of small entities.\14\ --------------------------------------------------------------------------- \13\ According to the SHRM Web site, approximately 50 percent of the organization's members work in organizations with fewer than 500 employees. See SHRM, About the Society for Human Resource Management, http://www.shrm.org/about/pages/default.aspx. Taking 50 percent of the total estimated number of members in SHRM and CFGI (125,000) results in 62,500 small entities. \14\ The Department assumed that the total number of small businesses and non-profits is equal to the number of firms with 20 to 499 employees. Because the U.S. Census Bureau did not identify the number of firms with 20 to 499 employees in 2013, the most recent year for which data is available, the Department calculated the estimated number of firms with 20 to 499 employees in that year by calculating the number of establishments with 20 to 499 employees in 2013 and dividing it by the ratio of small establishments to small firms in 2012. To perform that calculation, the Department first determined the estimated number of firms with 20 to 99 employees in 2013 by (1) adding the number of establishments with 20 to 49 employees in 2013 and the number of establishments with 50 to 99 employees in 2013 (652,075 + 221,192 = 873,267); (2) dividing the number of establishments with 20 to 99 employees in 2012 by the number of firms with 20 to 99 employees in 2012 (687,272/494,170 = 1.39076); and (3) dividing the first number by the second (873,267/ 1.39076 = 627,906). The Department then determined the estimated number of firms with 100 to 499 employees in 2013 by (1) adding the number of establishments with 100 to 249 employees in 2013 and the number of establishments with 250 to 499 employees in 2013 (124,411 + 31,843 = 156,254); (2) dividing the number of establishments with 100 to 499 employees in 2012 by the number of firms with 100 to 499 employees in 2012 (360,207/83,423 = 4.3178); and (3) dividing the first number by the second (156,254/4.3178 = 36,188). Last, to determine the estimated number of firms with 20 to 499 employees in 2013, the Department added the estimated number of firms with 20 to 99 employees in 2013 and the estimated number of firms with 100 to 499 employees in 2013 (627,906 + 36,188 = 664,094). See U.S. Census Bureau, 2013 County Business Patterns (NAICS), http://censtats.census.gov; U.S. Census Bureau, 2012 Statistics of U.S. Businesses, Number of Firms, Number of Establishments, Employment, Annual Payroll, and Estimated Receipts by Enterprise Employment Size for the United States and States, Totals: 2012; http://www.census.gov/econ/susb/historical_data.html. --------------------------------------------------------------------------- The Department estimated the costs of (a) familiarizing staff with the new requirements in the rule, (b) reviewing and revising their employment eligibility verification policy, and (c) viewing a training webinar. The analysis focused on the first year of rule implementation when all costs of the rule are incurred. The Department estimated that the total one-year cost per small employer is $324.\15\ The Department has determined that the yearly cost of $324 will not have a significant economic impact on any of the affected small entities. Therefore, the Department has certified that the rule will not have a significant impact on a substantial number of small entities. --------------------------------------------------------------------------- \15\ The Department estimated a cost of $324 per small entity by taking the sum of the cost per small entity of each of the changes to the rule. This includes the following costs: familiarization with the rule ($81), revising employment eligibility verification policies by making word replacements ($20), making additional changes beyond word replacements ($20), conducting a front-to-back review of the employment eligibility verification policies ($122), and viewing the training webinar ($81). --------------------------------------------------------------------------- Paperwork Reduction Act These regulations contain no information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 8 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Unfunded Mandates Reform Act of 1995 For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, this rule does not include any Federal mandate that may result in more than $100 million in expenditures by State, local, and tribal governments in the aggregate or by the private sector. Executive Order 13132 (Federalism) The agency has reviewed this rule in accordance with Executive Order 13132 (Aug. 4, 1999), and has determined that it does not have ``federalism implications.'' This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) This rule does not have tribal implications under Executive Order 13175 (Nov. 6, 2000) that will require a tribal summary impact statement. The rule will not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Executive Order 13045 (Protection of Children) This rule is not a covered regulatory action under Executive Order 13045 (Apr. 21, 1997). The rule will have no environmental health risk or safety risk that may disproportionately affect children. Executive Order 12630 (Constitutionally Protected Property Rights) This rule does not have takings implications under Executive Order 12630 (Mar. 15, 1988). The rule will not effect a taking or require dedications or exactions from owners of private property. Executive Order 12988 (Civil Justice Reform Analysis) This rule was drafted and reviewed in accordance with Executive Order 12988 (Feb. 5, 1996), and will not unduly burden the Federal court system. Complaints respecting unfair immigration-related employment practices are heard in the first instance by the Department of Justice, Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer, with only a miniscule number appealed each year to the Federal Circuit Courts of Appeal and an even smaller number of subpoenas or orders enforced by Federal District Courts. List of Subjects 28 CFR Part 0 Authority delegations (government agencies), Government employees, [[Page 91789]] Organization and functions (government agencies), Privacy, Reporting and recordkeeping requirements, Whistleblowing. 28 CFR Part 44 Administrative practice and procedure, Equal employment opportunity, Immigration. For the reasons stated in the preamble, the Attorney General amends 28 CFR parts 0 and 44 as follows: PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE 0 1. The authority citation for part 0 continues to read as follows: Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519. 0 2. Section 0.53 is revised to read as follows: Sec. 0.53 Immigrant and Employee Rights Section. (a) The Immigrant and Employee Rights Section shall be headed by a Special Counsel for Immigration-Related Unfair Employment Practices (``Special Counsel''). The Special Counsel shall be appointed by the President for a term of four years, by and with the advice and consent of the Senate, pursuant to section 274B of the Immigration and Nationality Act (INA), 8 U.S.C. 1324b. The Immigrant and Employee Rights Section shall be part of the Civil Rights Division of the Department of Justice, and the Special Counsel shall report directly to the Assistant Attorney General, Civil Rights Division. (b) In carrying out the Special Counsel's responsibilities under section 274B of the INA, the Special Counsel is authorized to: (1) Investigate charges of unfair immigration-related employment practices filed with the Immigrant and Employee Rights Section and, when appropriate, file complaints with respect to those practices before specially designated administrative law judges within the Office of the Chief Administrative Hearing Officer, Executive Office for Immigration Review, U.S. Department of Justice; (2) Intervene in proceedings involving complaints of unfair immigration-related employment practices that are brought directly before such administrative law judges by parties other than the Special Counsel; (3) Conduct, on the Special Counsel's own initiative, investigations of unfair immigration-related employment practices and, where appropriate, file complaints with respect to those practices before such administrative law judges; (4) Conduct, handle, and supervise litigation in U.S. District Courts for judicial enforcement of subpoenas or orders of administrative law judges regarding unfair immigration-related employment practices; (5) Initiate, conduct, and oversee activities relating to the dissemination of information to employers, employees, and the general public concerning unfair immigration-related employment practices; (6) Establish such regional offices as may be necessary, in accordance with regulations of the Attorney General; (7) Perform such other functions as the Assistant Attorney General, Civil Rights Division may direct; and (8) Delegate to any subordinate any of the authority, functions, or duties vested in the Special Counsel. 0 3. Revise part 44 to read as follows: PART 44--UNFAIR IMMIGRATION-RELATED EMPLOYMENT PRACTICES Sec. 44.100 Purpose. 44.101 Definitions. 44.102 Computation of time. 44.200 Unfair immigration-related employment practices. 44.201 [Reserved]. 44.202 Counting employees for jurisdictional purposes. 44.300 Filing a charge. 44.301 Receipt of charge. 44.302 Investigation. 44.303 Determination. 44.304 Special Counsel acting on own initiative. 44.305 Regional offices. Authority: 8 U.S.C. 1103(a)(1), (g), 1324b. Sec. 44.100 Purpose. The purpose of this part is to implement section 274B of the Immigration and Nationality Act (8 U.S.C. 1324b), which prohibits certain unfair immigration-related employment practices. Sec. 44.101 Definitions. For purposes of 8 U.S.C. 1324b and this part: (a) Charge means a written statement in any language that-- (1) Is made under oath or affirmation; (2) Identifies the charging party's name, address, and telephone number; (3) Identifies the injured party's name, address, and telephone number, if the charging party is not the injured party; (4) Identifies the name and address of the person or other entity against whom the charge is being made; (5) Includes a statement sufficient to describe the circumstances, place, and date of an alleged unfair immigration-related employment practice; (6) Indicates whether the basis of the alleged unfair immigration- related employment practice is discrimination based on national origin, citizenship status, or both; or involves intimidation or retaliation; or involves unfair documentary practices; (7) Indicates the citizenship status of the injured party; (8) Indicates, if known, the number of individuals employed on the date of the alleged unfair immigration-related employment practice by the person or other entity against whom the charge is being made; (9) Is signed by the charging party and, if the charging party is neither the injured party nor an officer of the Department of Homeland Security, indicates that the charging party has the authorization of the injured party to file the charge; (10) Indicates whether a charge based on the same set of facts has been filed with the Equal Employment Opportunity Commission, and if so, the specific office and contact person (if known); and (11) Authorizes the Special Counsel to reveal the identity of the injured or charging party when necessary to carry out the purposes of this part. (b) Charging party means-- (1) An injured party who files a charge with the Special Counsel; (2) An individual or entity authorized by an injured party to file a charge with the Special Counsel that alleges that the injured party is adversely affected directly by an unfair immigration-related employment practice; or (3) An officer of the Department of Homeland Security who files a charge with the Special Counsel that alleges that an unfair immigration-related employment practice has occurred or is occurring. (c) Citizenship status means an individual's status as a U.S. citizen or national, or non-U.S. citizen, including the immigration status of a non-U.S. citizen. (d) Complaint means a written submission filed with the Office of the Chief Administrative Hearing Officer (OCAHO) under 28 CFR part 68 by the Special Counsel or by a charging party, other than an officer of the Department of Homeland Security, alleging one or more unfair immigration-related employment practices under 8 U.S.C. 1324b. (e) Discriminate as that term is used in 8 U.S.C. 1324b(a) means the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility. [[Page 91790]] (f) The phrase ``for purposes of satisfying the requirements of section 1324a(b),'' as that phrase is used in 8 U.S.C. 1324b(a)(6), means for the purpose of completing the employment eligibility verification form designated in 8 CFR 274a.2, or for the purpose of making any other efforts to verify an individual's employment eligibility, including the use of ``E-Verify'' or any other electronic employment eligibility verification program. (g) An act done ``for the purpose or with the intent of discriminating against an individual in violation of [1324(a)(1)],'' as that phrase is used in 8 U.S.C. 1324b(a)(6), means an act of intentionally treating an individual differently based on national origin or citizenship status in violation of 8 U.S.C. 1324b(a)(1), regardless of the explanation for the differential treatment, and regardless of whether such treatment is because of animus or hostility. (h) Hiring means all conduct and acts during the entire recruitment, selection, and onboarding process undertaken to make an individual an employee. (i) Injured party means an individual who claims to be adversely affected directly by an unfair immigration-related employment practice. (j) The phrase ``more or different documents than are required under such section,'' as that phrase is used in 8 U.S.C. 1324b(a)(6), includes any limitation on an individual's choice of acceptable documentation to present to satisfy the requirements of 8 U.S.C. 1324a(b). (k) Protected individual means an individual who-- (1) Is a citizen or national of the United States; (2) Is an alien who is lawfully admitted for permanent residence, other than an alien who-- (i) Fails to apply for naturalization within six months of the date the alien first becomes eligible (by virtue of period of lawful permanent residence) to apply for naturalization, or, if later, within six months after November 6, 1986; or (ii) Has applied on a timely basis, but has not been naturalized as a citizen within two years after the date of the application, unless the alien can establish that he or she is actively pursuing naturalization, except that time consumed in the Department of Homeland Security's processing of the application shall not be counted toward the two-year period; (3) Is granted the status of an alien lawfully admitted for temporary residence under 8 U.S.C. 1160(a) or 8 U.S.C. 1255a(a)(1); (4) Is admitted as a refugee under 8 U.S.C. 1157; or (5) Is granted asylum under 8 U.S.C. 1158. (l) Recruitment or referral for a fee has the meaning given the terms ``recruit for a fee'' and ``refer for a fee,'' respectively, in 8 CFR 274a.1, and includes all conduct and acts during the entire recruitment or referral process. (m) Respondent means a person or other entity who is under investigation by the Special Counsel, as identified in the written notice required by Sec. 44.301(a) or Sec. 44.304(a). (n) Special Counsel means the Special Counsel for Immigration- Related Unfair Employment Practices appointed by the President under 8 U.S.C. 1324b, or a duly authorized designee. Sec. 44.102 Computation of time. When a time period specified in this part ends on a day when the Federal Government in Washington, DC is closed (such as on weekends and Federal holidays, or due to a closure for all or part of a business day), the time period shall be extended until the next full day that the Federal Government in Washington, DC is open. Sec. 44.200 Unfair immigration-related employment practices. (a)(1) General. It is an unfair immigration-related employment practice under 8 U.S.C. 1324b(a)(1) for a person or other entity to intentionally discriminate or to engage in a pattern or practice of intentional discrimination against any individual (other than an unauthorized alien) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment-- (i) Because of such individual's national origin; or (ii) In the case of a protected individual, as defined in Sec. 44.101(k), because of such individual's citizenship status. (2) Intimidation or retaliation. It is an unfair immigration- related employment practice under 8 U.S.C. 1324b(a)(5) for a person or other entity to intimidate, threaten, coerce, or retaliate against any individual for the purpose of interfering with any right or privilege secured under 8 U.S.C. 1324b or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under that section. (3) Unfair documentary practices. It is an unfair immigration- related employment practice under 8 U.S.C. 1324b(a)(6) for-- (i) A person or other entity, for purposes of satisfying the requirements of 8 U.S.C. 1324a(b), either-- (A) To request more or different documents than are required under Sec. 1324a(b); or (B) To refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual; and (ii) To make such request or refusal for the purpose or with the intent of discriminating against any individual in violation of paragraph (a)(1) of this section, regardless of whether such documentary practice is a condition of employment or causes economic harm to the individual. (b) Exceptions. (1) Paragraph (a)(1) of this section shall not apply to-- (i) A person or other entity that employs three or fewer employees; (ii) Discrimination because of an individual's national origin by a person or other entity if such discrimination is covered by 42 U.S.C. 2000e-2; or (iii) Discrimination because of citizenship status which-- (A) Is otherwise required in order to comply with law, regulation, or Executive order; or (B) Is required by Federal, State, or local government contract; or (C) The Attorney General determines to be essential for an employer to do business with an agency or department of the Federal, State, or local government. (2) Notwithstanding any other provision of this part, it is not an unfair immigration-related employment practice for a person or other entity to prefer to hire an individual, or to recruit or refer for a fee an individual, who is a citizen or national of the United States over another individual who is an alien if the two individuals are equally qualified. Sec. 44.201 [Reserved] Sec. 44.202 Counting employees for jurisdictional purposes. The Special Counsel will calculate the number of employees referred to in Sec. 44.200(b)(1)(i) by counting all part-time and full-time employees employed on the date that the alleged discrimination occurred. The Special Counsel will use the 20 calendar week requirement contained in Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e(b), for purposes of determining whether the exception of Sec. 44.200(b)(1)(ii) applies, and will refer to the Equal Employment Opportunity Commission charges of national origin discrimination that the Special Counsel determines are covered by 42 U.S.C. 2000e-2. [[Page 91791]] Sec. 44.300 Filing a charge. (a) Who may file: Charges may be filed by: (1) Any injured party; (2) Any individual or entity authorized by an injured party to file a charge with the Special Counsel alleging that the injured party is adversely affected directly by an unfair immigration-related employment practice; or (3) Any officer of the Department of Homeland Security who alleges that an unfair immigration-related employment practice has occurred or is occurring. (b) Charges shall be filed within 180 days of the alleged occurrence of an unfair immigration-related employment practice. A charge is deemed to be filed on the date it is postmarked or the date on which the charging party otherwise delivers or transmits the charge to the Special Counsel. (c) Charges may be sent by: (1) U.S. mail; (2) Courier service; (3) Electronic or online submission; or (4) Facsimile. (d) No charge may be filed respecting an unfair immigration-related employment practice described in Sec. 44.200(a)(1)(i) if a charge with respect to that practice based on the same set of facts has been filed with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, as amended, unless the charge is dismissed as being outside the scope of such title. No charge respecting an employment practice may be filed with the Equal Employment Opportunity Commission under such title if a charge with respect to such practice based on the same set of facts has been filed under this section, unless the charge is dismissed as being outside the scope of this part. Sec. 44.301 Receipt of charge. (a) Within 10 days of receipt of a charge, the Special Counsel shall notify the charging party and respondent by certified mail, in accordance with paragraphs (b) and (c) of this section, of the Special Counsel's receipt of the charge. (b) The notice to the charging party shall specify the date on which the charge was received; state that the charging party, other than an officer of the Department of Homeland Security, may file a complaint before an administrative law judge if the Special Counsel does not do so within 120 days of receipt of the charge; and state that the charging party will have 90 days from the receipt of the letter of determination issued pursuant to Sec. 44.303(b) by which to file such a complaint. (c) The notice to the respondent shall include the date, place, and circumstances of the alleged unfair immigration-related employment practice. (d)(1) If a charging party's submission is found to be inadequate to constitute a complete charge as defined in Sec. 44.101(a), the Special Counsel shall notify the charging party that the charge is incomplete and specify what additional information is needed. (2) An incomplete charge that is later deemed to be complete under this paragraph is deemed filed on the date the initial but inadequate submission is postmarked or otherwise delivered or transmitted to the Special Counsel, provided any additional information requested by the Special Counsel pursuant to this paragraph is postmarked or otherwise provided, delivered or transmitted to the Special Counsel within 180 days of the alleged occurrence of an unfair immigration-related employment practice or within 45 days of the date on which the charging party received the Special Counsel's request for additional information, whichever is later. (3) Once the Special Counsel determines adequate information has been submitted to constitute a complete charge, the Special Counsel shall issue the notices required by paragraphs (b) and (c) of this section within 10 days. (e) In the Special Counsel's discretion, the Special Counsel may deem a submission to be a complete charge even though it is inadequate to constitute a charge as defined in Sec. 44.101(a). The Special Counsel may then obtain the additional information specified in Sec. 44.101(a) in the course of investigating the charge. (f) A charge or an inadequate submission referred to the Special Counsel by a federal, state, or local government agency appointed as an agent for accepting charges on behalf of the Special Counsel is deemed filed on the date the charge or inadequate submission was postmarked to or otherwise delivered or transmitted to that agency. Upon receipt of the referred charge or inadequate submission, the Special Counsel shall follow the applicable notification procedures for the receipt of a charge or inadequate submission set forth in this section. (g) The Special Counsel shall dismiss a charge or inadequate submission that is filed more than 180 days after the alleged occurrence of an unfair immigration-related employment practice, unless the Special Counsel determines that the principles of waiver, estoppel, or equitable tolling apply. Sec. 44.302 Investigation. (a) The Special Counsel may seek information, request documents and answers to written interrogatories, inspect premises, and solicit testimony as the Special Counsel believes is necessary to ascertain compliance with this part. (b) The Special Counsel may require any person or other entity to present Employment Eligibility Verification Forms (``Forms I-9'') for inspection. (c) The Special Counsel shall have reasonable access to examine the evidence of any person or other entity being investigated. The respondent shall permit access by the Special Counsel during normal business hours to such books, records, accounts, papers, electronic and digital documents, databases, systems of records, witnesses, premises, and other sources of information the Special Counsel may deem pertinent to ascertain compliance with this part. (d) A respondent, upon receiving notice by the Special Counsel that it is under investigation, shall preserve all evidence, information, and documents potentially relevant to any alleged unfair immigration- related employment practices, and shall suspend routine or automatic deletion of all such evidence, information, and documents. Sec. 44.303 Determination. (a) Within 120 days of the receipt of a charge, the Special Counsel shall undertake an investigation of the charge and determine whether to file a complaint with respect to the charge. (b) If the Special Counsel determines not to file a complaint with respect to such charge by the end of the 120-day period, or decides to continue the investigation of the charge beyond the 120-day period, the Special Counsel shall, by the end of the 120-day period, issue letters to the charging party and respondent by certified mail notifying both parties of the Special Counsel's determination. (c) When a charging party receives a letter of determination issued pursuant to paragraph (b) of this section, the charging party, other than an officer of the Department of Homeland Security, may file a complaint directly before an administrative law judge in the Office of the Chief Administrative Hearing Officer (OCAHO) within 90 days after his or her receipt of the Special Counsel's letter of determination. The charging party's complaint must be filed with OCAHO as provided in 28 CFR part 68. [[Page 91792]] (d) The Special Counsel's failure to file a complaint with respect to such charge with OCAHO within the 120-day period shall not affect the right of the Special Counsel to continue to investigate the charge or later to bring a complaint before OCAHO. (e) The Special Counsel may seek to intervene at any time in any proceeding brought by a charging party before OCAHO. Sec. 44.304 Special Counsel acting on own initiative. (a) The Special Counsel may, on the Special Counsel's own initiative, conduct investigations respecting unfair immigration- related employment practices when there is reason to believe that a person or other entity has engaged or is engaging in such practices, and shall notify a respondent by certified mail of the commencement of the investigation. (b) The Special Counsel may file a complaint with OCAHO when there is reasonable cause to believe that an unfair immigration-related employment practice has occurred no more than 180 days prior to the date on which the Special Counsel opened an investigation of that practice. Sec. 44.305 Regional offices. The Special Counsel, in accordance with regulations of the Attorney General, shall establish such regional offices as may be necessary to carry out the Special Counsel's duties. Dated: December 14, 2016. Loretta E. Lynch, Attorney General. [FR Doc. 2016-30491 Filed 12-16-16; 8:45 am] BILLING CODE 4410-13-P
![91768 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
taxable years ending after December 31, amount reported under paragraph PART 301—PROCEDURE AND
2013. (c)(1)(viii) of this section is the ADMINISTRATION
(2) Paragraphs (c)(4), (d)(1) and (d)(2) enrollment premium for the month,
of this section apply to taxable years reduced by any amounts that were ■ Par. 9. The authority citation for part
beginning after December 31, 2016. refunded. 301 continues to read in part as follows:
Paragraph (f) of this section applies to * * * * * Authority: 26 U.S.C. 7805. * * *
taxable years beginning after December (h) Effective/applicability date. Except Section 301.6011–2 also issued under 26
31, 2018. Paragraphs (d)(1) and (d)(2) of for the last sentence of paragraph U.S.C. 6011(e). * * *
§ 1.36B–3, as contained in 26 CFR part (c)(3)(i) of this section and paragraph
I edition revised as of April 1, 2016, (c)(3)(iii) of this section, this section § 301.6011–2 [Amended]
applies to taxable years ending after applies to taxable years ending after ■ Par. 10. Section 301.6011–2(b)(1) is
December 31, 2013, and beginning December 31, 2013. The last sentence of amended by adding ‘‘1095–B, 1095–C’’
before January 1, 2017. Paragraph (f) of paragraph (c)(3)(i) of this section and after ‘‘1094 series’’, and removing ‘‘1095
§ 1.36B–3, as contained in 26 CFR part paragraph (c)(3)(iii) of this section apply series’’.
I edition revised as of April 1, 2016, to taxable years beginning after
applies to taxable years ending after John Dalrymple,
December 31, 2018. Paragraph (c)(3) of
December 31, 2013, and beginning Deputy Commissioner for Service and
§ 1.36B–5 as contained in 26 CFR part
before January 1, 2019. Enforcement.
I edition revised as of April 1, 2016,
■ Par. 6. Section 1.36B–5 is amended Approved: December 8, 2016.
applies to information reporting for
by: taxable years ending after December 31, Mark J. Mazur,
■ 1. Adding a sentence to the end of 2013, and beginning before January 1, Assistant Secretary of the Treasury (Tax
paragraph (c)(3)(i). 2019. Policy).
■ 2. Adding paragraphs (c)(3)(iii) and [FR Doc. 2016–30037 Filed 12–14–16; 4:15 pm]
■ Par. 7. Section 1.5000A–3 is amended
(h). BILLING CODE 4830–01–P
The additions read as follows: by adding a new paragraph (e)(3)(ii)(G)
to read as follows:
§ 1.36B–5 Information reporting by
Exchanges. § 1.5000A–3 Exempt individuals. DEPARTMENT OF JUSTICE
* * * * * * * * * *
(c) * * * (e) * * * 28 CFR Parts 0 and 44
(3) * * * (3) * * * [CRT Docket No. 130; AG Order No. 3791–
(i) * * * If advance credit payments (ii) * * * 2016 No. RIN 1190–AA71]
are made for coverage under the plan, (G) Opt-out arrangements. [Reserved]
Standards and Procedures for the
the enrollment premiums reported to * * * * * Enforcement of the Immigration and
each family under paragraph (c)(1)(viii) ■ Par. 8. Section 1.6011–8 is revised to Nationality Act
of this section are the premiums read as follows:
allocated to the family under § 1.36B– AGENCY: Civil Rights Division,
3(h) (allocating enrollment premiums to § 1.6011–8 Requirement of income tax Department of Justice.
each taxpayer in proportion to the return for taxpayers who claim the premium ACTION: Final rule.
premiums for each taxpayer’s applicable tax credit under section 36B.
benchmark plan). (a) Requirement of return. Except as SUMMARY: This rule revises the
* * * * * otherwise provided in this paragraph Department of Justice’s (Department’s)
(iii) Partial month of coverage.—(A) (a), a taxpayer who receives the benefit regulations implementing a section of
In general. Except as provided in of advance payments of the premium the Immigration and Nationality Act
paragraph (c)(3)(iii)(B) of this section, if tax credit under section 36B must file an (INA) concerning unfair immigration-
an individual is enrolled in a qualified income tax return for that taxable year related employment practices. The
health plan after the first day of a on or before the due date for the return revisions conform the regulations to the
month, the amount reported for that (including extensions of time for filing) statutory text as amended, simplify and
month under paragraphs (c)(1)(iv), and reconcile the advance credit add definitions of statutory terms,
(c)(1)(v), and (c)(1)(viii) of this section is payments. However, if advance credit update and clarify the procedures for
$0. payments are made for coverage of an filing and processing charges of
(B) Certain mid-month enrollments. individual for whom no taxpayer claims discrimination, ensure effective
For information reporting that is due on a personal exemption deduction, the investigations of unfair immigration-
or after January 1, 2019, if an taxpayer who attests to the Exchange to related employment practices, reflect
individual’s qualified health plan is the intention to claim a personal developments in nondiscrimination
terminated before the last day of a exemption deduction for the individual jurisprudence, reflect changes in
month, or if an individual is enrolled in as part of the determination that the existing practices (e.g., electronic filing
coverage after the first day of a month taxpayer is eligible for advance credit of charges), reflect the new name of the
and the coverage is effective on the date payments must file a tax return and office within the Department charged
of the individual’s birth, adoption, or reconcile the advance credit payments. with enforcing this statute, and replace
placement for adoption or in foster care, (b) Effective/applicability date. Except outdated references.
or on the effective date of a court order, as otherwise provided, this section DATES: This rule is effective on January
srobinson on DSK5SPTVN1PROD with RULES
the amount reported under paragraphs applies for taxable years beginning after 18, 2017.
(c)(1)(iv) and (c)(1)(v) of this section is December 31, 2016. Paragraph (a) of FOR FURTHER INFORMATION CONTACT:
the premium for the applicable § 1.6011–8 as contained in 26 CFR part Alberto Ruisanchez, Deputy Special
benchmark plan for a full month of I edition revised as of April 1, 2016, Counsel, Office of Special Counsel for
coverage (excluding the premium applies to taxable years ending after Immigration-Related Unfair
allocated to benefits in excess of December 31, 2013, and beginning Employment Practices, Civil Rights
essential health benefits), and the before January 1, 2017. Division, 950 Pennsylvania Avenue
VerDate Sep<11>2014 20:46 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00126 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/1.svg)
![91770 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
or in part. One commenter ‘‘strongly Counsel have ‘‘refrain[ed] for 30 years hire a worker who lacks employment
supports the entirety of the from issuing rules regarding the burden authorization will be accused of
Department’s proposed rulemaking.’’ and standard of proof governing claims discrimination, and that the employer
Another commenter states that its of discrimination under INA § 274B’’ as that hires the same worker will be
employer members ‘‘generally support an implicit recognition that ‘‘these accused of violating the separate
those sections of the proposed rule that adjudicative functions lie exclusively prohibition against knowingly hiring an
will clarify existing investigation and with OCAHO administrative law unauthorized worker, found at 8 U.S.C.
enforcement procedures for the Special judges.’’ Another commenter describes 1324a.
Counsel and update existing language to the NPRM as an ‘‘unlawful, ultra vires, Response: The Department disagrees
reflect statutory changes.’’ expansion of DOJ OSC power.’’ with the accuracy of the example set
Response: The Department Response: The Department disagrees forth in this comment. Section 1324b
acknowledges these expressions of with these comments and has decided protects only employment-authorized
support. that it will promulgate this rule. As individuals from discrimination under
Issue: The Department received one discussed in the Background on Legal the INA. 8 U.S.C. 1324b(a)(1) (‘‘It is an
comment two days before the close of Authority section above, the Attorney unfair immigration-related employment
the comment period requesting an General has the authority to promulgate practice for a person or other entity to
extension of the comment period ‘‘until this rule. While one commenter believes discriminate against any individual
executive and legislative positions are that 8 U.S.C. 1103(g)(1) precludes the (other than an unauthorized alien, as
filled in 2017.’’ Department from issuing these defined in section 1324a(h)(3) of this
Response: The Department declines to regulations, we contend that that
grant the request made through this title) . . .’’ (emphasis added)); see also
paragraph cannot be read in isolation. 8 U.S.C. 1324a(h)(3) (defining
comment. The Department has provided As discussed above, 8 U.S.C. 1103(a)(1)
a 60-day comment period, which is ‘‘unauthorized alien’’ as an alien that is
together with subsection 1103(g)—and not ‘‘lawfully admitted for permanent
reasonable and appropriate. The section 1324b—provide the Attorney
Department has reviewed all comments residence’’ or ‘‘authorized to be so
General with the necessary authority to
carefully and sees no reason to delay the employed’’). As a result, an employer’s
promulgate this rule. Furthermore,
publication of this rule. refusal to hire a worker based on that
nothing in this rule alters the burden or
Issue: A number of commenters ask worker’s lack of employment
standards of proof for assessing whether
the Department not to promulgate the authorization does not violate the INA’s
a person or entity has violated the
rule based on various concerns. The anti-discrimination provision. See 8
statute, nor does the rule alter the
Department is addressing the specific U.S.C. 1324b(a)(2)(C). The Department,
authority of administrative law judges to
concerns raised by these commenters along with DHS’s U.S. Citizenship and
adjudicate cases under section 1324b.
below, by subject. Issue: Two commenters express Immigration Services (USCIS) and
Response: The Department addresses concern that the Department does not Immigration and Customs Enforcement
below the specific concerns that these enforce this law sufficiently. One of (ICE), has issued several public
commenters raise. The Department will these commenters expresses education materials that discuss how
make this rule final as proposed with appreciation for the government’s employers can avoid discrimination
four changes. interest in solving these problems, and while also complying with legal
Issue: One commenter asks the states, ‘‘[t]hese immigrants, who are not requirements to verify employment
Department not to promulgate the rule being hired and wish to fight the eligibility and ensure they do not
on the basis that it is ‘‘ultra vires to the prejudice’’ cannot combat knowingly employ a worker who lacks
rule making authority and functions discrimination in hiring because of employment authorization. For more
vested in the [Attorney General] and ‘‘their lack of knowledge of the U.S legal information, visit www.justice.gov/crt/
OSC by Congress.’’ This commenter system. They already have to face employer-information; https://
cites to 8 U.S.C. 1103(g)(1) to support obstacles of coming to the United States www.uscis.gov/i-9-central; https://
the commenter’s position that the and taking on a new challenge of trying www.ice.gov/sites/default/files/
Attorney General is limited to to establish themselves and then documents/Document/2015/i9-
promulgating substantive rules under business owners are denying them the guidance.pdf.
the INA relating only to the functions of basic rights every American is given.’’ Office Name Change
the Executive Office for Immigration Response: Although the Department
Review, another component within the recognizes the challenges that many Issue: One commenter disagrees with
Department. Based on that reading, this employment-authorized immigrants face the proposal to change the name of the
commenter claims that the Attorney in overcoming discriminatory barriers, office that enforces section 1324b, from
General and Special Counsel lack the the Department has vigorously enforced the Office of Special Counsel for
authority to issue rules ‘‘with regard to this law to combat the discriminatory Immigration-Related Unfair
the interpretation and enforcement of barriers identified by the commenter. Employment Practices to the Immigrant
the immigration-related anti- The Department also engages in and Employee Rights Section. The
discrimination provisions of INA extensive outreach to the public to commenter claims that the new name
§ 274B.’’ This commenter also claims educate workers and employers about ‘‘is . . . not in line with the statute’’
that the Attorney General and the their rights and responsibilities under because section 274b(c) of the INA
Special Counsel lack the authority ‘‘to this law. Moreover, promulgating this requires the President to appoint a
regulate standards governing the order rule is critical to conforming the Special Counsel to handle
srobinson on DSK5SPTVN1PROD with RULES
and burden of proof to be applied by existing regulations to the law. ‘‘Immigration-Related Unfair
administrative law judges (ALJs) and the Information about the Department’s Employment Practices,’’ not for
courts for the purpose of evaluating enforcement and outreach work under ‘‘Employee Rights’’ more generally.
claims of citizenship or national origin this law is available at http:// Moreover, the commenter claims that
discrimination, or document abuse.’’ www.justice.gov/crt/about/osc. changing the name of the office will
This commenter points to the fact that Issue: One commenter expresses alter the Special Counsel’s authority to
the Attorney General and the Special concern that an employer that refuses to enforce the law.
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00128 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/3.svg)
![91772 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
only if done ‘‘for the purpose or with the employer.’’ The employer in this specific documents that could satisfy
the intent of discriminating against an example would not face liability unless Form I–9 requirements. Another
individual in violation of’’ 8 U.S.C. the employer was requesting specific, commenter, relying on ‘‘good faith’’
1324b(a)(1). The definition at paragraph more, or different documents from defenses set forth in section 1324a,
(g) makes clear that discrimination workers for employment eligibility suggests that discrimination can never
under 8 U.S.C. 1324b(a)(6) also requires verification purposes because of the include ‘‘good faith efforts to verify the
‘‘intentionally treating an individual workers’ protected characteristic. If, employment eligibility’’ of workers.
differently based on national origin or however, the employer allows each This commenter also criticizes the
citizenship status.’’ worker to show his or her choice of NPRM’s use of language from United
The definitions in these paragraphs valid documentation for the States v. Life Generations Healthcare,
reflect longstanding black letter civil employment eligibility verification LLC, 11 OCAHO no. 1227, 22–23 (2014),
rights law and the Special Counsel’s process, the employer would not be arguing that the Department’s references
long-held position on what constitutes discriminating in violation of the to Life Generations fail to support the
intentional discrimination under section statute. proposition that discrimination in
1324b. See, e.g., City of Los Angeles Issue: A number of commenters object violation of section 1324b does not
Dep’t of Water and Power v. Manhart, to what they claim is an attempt to require ill will or malice.
435 U.S. 702, 711 (1978) (finding sex apply a strict liability standard to Response: The Department disagrees
discrimination where employer required ‘‘innocent’’ or ‘‘unintentional conduct’’ that the law requires a showing of
female employees to make larger that lacks the necessary ‘‘ill will or animus or ill will to establish
contributions than men to its pension discriminatory intent or that section
animus.’’ One commenter points to the
fund because such treatment satisfies
dictionary definitions of ‘‘discriminate,’’ 1324b recognizes a ‘‘good faith’’ defense
‘‘the simple test of whether the evidence
claiming that the proper legal definition to discrimination. An employer cannot
shows ‘treatment of a person in a
of ‘‘discriminate’’ involves ‘‘unfair or justify discriminatory conduct simply
manner which, but for that person’s sex,
bad treatment,’’ and that if the by claiming a lack of ill will or animus,
would be different’ ’’); Int’l Union v.
definition just meant ‘‘different’’ or that differential treatment based on
Johnson Controls, Inc., 499 U.S. 187,
treatment, employers who engage in citizenship or national origin is
200 (1991) (applying the ‘‘simple test’’
‘‘innocent behavior [would be] swept up nevertheless legal because the employer
in Manhart). The holding in Robison,
in the enforcement apparatus.’’ Another is trying to assist workers in ‘‘good
147 F.3d 798, on which several
commenter states that Congress faith.’’ The Department’s position
commenters rely for their position that
the Department is seeking to remove the intended a showing of animus or ill will mirrors the Supreme Court’s and other
intent requirement from the statute, is to establish a violation and the courts’ analyses on what constitutes
also in harmony with the Special regulation should reflect that legislative intentional discrimination in a variety
Counsel’s position. In that case, the intent. This commenter objects that the of contexts, including the principle that
Ninth Circuit held that ‘‘Congress definition of ‘‘discriminate’’ would explicit discrimination is disparate
intended a discrimination requirement ‘‘actually apply to employers who treatment even absent a malevolent
in the 1990 statute and merely clarified intentionally treat individuals motive, and is consistent with OCAHO
the statute to state that intent in its 1996 differently even if [the employers] want case law. See, e.g., Johnson Controls,
amendment.’’ Robison Fruit Ranch, Inc., to help [the employees] through the 499 U.S. at 199 (stating that, in the
147 F.3d at 801. The Court did not find employment eligibility process.’’ The context of Title VII, ‘‘absence of a
discrimination because the employer’s commenter suggests that under the malevolent motive does not convert a
documentary requests were made to proposed revisions, providing sign facially discriminatory policy into a
both U.S. citizens and non-U.S. citizens. language assistance to a worker neutral policy with a discriminatory
Id. This decision is consistent with the completing the Form I–9 or allowing a effect. Whether an employment practice
Department’s position on what family member or friend to serve as an involves disparate treatment through
discrimination means under the statute. interpreter could constitute intentional explicit facial discrimination does not
While several commenters state that discrimination and violate the law. depend on why the employer
the Department’s proposed definition of Other commenters provide different discriminates but rather on the explicit
discrimination is based exclusively on examples of conduct they see as helpful terms of the discrimination.’’); Life
references to OCAHO decisions or the to a worker that they claim could be a Generations Healthcare, LLC, 11
Special Counsel’s prior positions, the violation of the law under the proposed OCAHO no. 1227 at 22–23 (‘‘It is not
NPRM and this rule contain several revisions, such as an employer that asks required that malice or ill will be
references to seminal Supreme Court a lawful permanent resident who shown, and the absence of a malevolent
cases that support the Department’s neglects to include a USCIS/alien motive does not alter the character of a
proposed definition. Moreover, the number in Section 1 ‘‘for discriminatory policy.’’) (citing Johnson
suggestion that OCAHO case law is documentation,’’ or an employer that Controls)); see also Kentucky Retirement
insufficient is misguided because says to a worker who selected lawful Systems v. E.E.O.C., 554 U.S. 135, 161
Congress authorized OCAHO permanent resident in Section 1 of the (2008) (stating that, under the Age
administrative law judges (ALJs) to Form I–9, ‘‘Oh, I see you are a Discrimination in Employment Act
decide cases under the statute. See 8 permanent resident. Do you have your (ADEA), ‘‘an otherwise discriminatory
U.S.C. 1324b(e)(2). green card for completion of Section 2 employment action cannot be rendered
In one example provided by a number [of the Form I–9]?’’ Two commenters lawful because the employer’s motives
srobinson on DSK5SPTVN1PROD with RULES
of commenters mentioned above, a share a similar example involving a were benign’’); Manhart, 435 U.S. at 711
lawful permanent resident chooses to human resources associate who seeks to (articulating the ‘‘simple test of [sex
show a Permanent Resident Card for the assist new employees complete the discrimination as] whether the evidence
employment eligibility verification Form I–9 by asking whether the shows ‘treatment of a person in a
process while a U.S. citizen provides a employee is a U.S. citizen or born manner which but for that person’s sex
driver’s license and Social Security outside of the United States, and would be different’’’); E.E.O.C. v.
card, both ‘‘without any prompting by depending upon the answer, suggests Baltimore Cnty., 747 F.3d 267, 273 (4th
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00130 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/5.svg)
![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 91773
Cir. 2014) (‘‘To prove facial (‘‘An employer knowingly and if an employer requests specific
discrimination under the ADEA, a intentionally discriminates on a documentation from lawful permanent
plaintiff is not required to prove an prohibited basis if it deliberately treats residents but does not request specific
employer’s discriminatory animus.’’); a job applicant differently on the basis documents of U.S. citizens, it would be
Holland v. Gee, 677 F.3d 1047, 1059 of the applicant’s citizenship status discrimination. And as with the above
(11th Cir. 2012) (stating that in an regardless of the employer’s motivation example, the employer in this example
employment discrimination case that for the discrimination.’’). The proposed would be liable under the current
‘‘insofar as [a respondent] insists that revisions correctly characterize the Life statutory language, regardless of
there must be proof of ill will or Generations ruling and are consistent whether the Department amended the
‘animus,’ that suggestion is with its analysis of discriminatory implementing regulations.
misguided’’); Community House, Inc. v. intent under section 1324b. Similarly, in the example involving a
City of Boise, 490 F.3d 1041, 1049 (9th We further note that a number of the human resources associate asking for an
Cir. 2006) (stating that ‘‘ostensibly commenters’ examples would not employee’s citizenship status and then
benign purpose’’ for differential violate the statute as long as the offering suggestions for documentation
treatment does not overcome employers are not treating employees that the employee might have based on
discriminatory intent under the Fair differently because of a protected the answer, the act may indeed violate
Housing Act); Bangerter v. Orem City characteristic. In one example, an the law if the employer’s actions
Corp., 46 F.3d 1491, 1500–01 (10th Cir. employer allows an employee’s friend amount to requesting specific
1995) (holding that ‘‘a plaintiff need not or family member to help translate the documents for employment eligibility
prove the malice or discriminatory Form I–9 for the employee. Such an act verification purposes from workers
animus of a defendant to make out a would not be considered discrimination based on their citizenship status or
case of intentional discrimination where unless the employer allowed only national origin.
the defendant expressly treats someone certain employees to have a friend or The Department further notes that
protected by the [Fair Housing Act] in family member assist in completing the many of the examples provided by
a different manner than others’’). This Form I–9 based on citizenship status or commenters characterize the act of
same interpretation of discrimination national origin. asking for specific documents from
has long been described in the Special We agree that other commenters’ workers during the employment
Counsel’s public education materials, examples could raise potential eligibility verification process as
Web site, and outreach presentations. In violations, but this conclusion is based ‘‘assistance.’’ The Department disagrees
short, a definition of discrimination that on the statutory language in effect for with this characterization. Requesting
requires complainants to prove that an decades and the Special Counsel’s long- specific employment eligibility
standing positions. In the example of verification documents from employees
employer acted with ill will, hostility or
the employer who asks a lawful unnecessarily limits their choice of
animus, in addition to showing
permanent resident for documentation documentation. An employer that is
differential treatment on the basis of a
after the worker fails to provide a interested in helping workers through
protected characteristic, finds no
USCIS/alien number in Section 1, the the employment eligibility verification
support in the statutory text or case law.
employer would be discriminating in process should provide all workers with
While some commenters criticize the violation of section 1324b(a)(6) if the the Lists of Acceptable Documents and
NPRM’s characterization of Life employer did not ask other workers for explain to them that they may present
Generations, the Life Generations case documentation to verify missing one List A document or one List B
makes clear that ‘‘a person has the information in Section 1. In other document and one List C document.
intent to discriminate if he or she would words, if an employer requested that Because the text of section 1324b does
have acted differently but for the lawful permanent residents who failed not contain a ‘‘good faith’’ defense,
protected characteristic.’’ 11 OCAHO to write their USCIS/alien number show unlike section 1324a, the Department
no. 1227 at 29. The ALJ in Life a document with that number, but did will not insert such a defense to
Generations explained that the proper not request the same of U.S. citizens discrimination in the proposed
test to determine discriminatory intent who left Form I–9 fields blank (e.g., zip revisions.
asks whether the outcome or treatment code or date of birth), that employer Issue: One commenter disagrees with
received would have been different if may well violate section 1324b(a)(6). changes to § 44.200(a)(1)’s description of
the protected classes had been reversed. More broadly, it is not clear from the the prohibition against discrimination
Id. at 22–23. The ALJ in that case found example why the hypothetical employer in hiring, firing, recruitment and referral
the requisite discriminatory intent would not simply ask the lawful for a fee. Specifically, this commenter
because it was ‘‘evident . . . that had permanent resident to write in the disagrees with the removal of the word
the groups been reversed, the outcome missing USCIS/alien number instead of ‘‘knowingly’’ and states, ‘‘one must
would have differed’’ despite the fact asking for a document. ‘know’ they are discriminating to be
that the human resources personnel In another example, an employer that liable under this intentional act’’ and
‘‘bore no hostile motives toward foreign- says to a lawful permanent resident, that it was ‘‘illogical’’ for the
born employees, and had no subjective ‘‘Oh, I see you are a lawful permanent Department to remove what the
discriminatory intent.’’ Id. In finding resident. Do you have your green card commenter believes is a ‘‘required
that the employer had the requisite for Section 2?’’ may also be acting in element’’ for establishing a violation.
discriminatory intent under section violation of the law. Employers may not Response: The Department disagrees
1324b(a)(6), the ALJ relied on Supreme request specific documents for with this comment and is adopting the
srobinson on DSK5SPTVN1PROD with RULES
Court precedent establishing that ‘‘the employment eligibility verification language from the proposed rule
absence of a malevolent motive does not purposes based on a worker’s without change. The proposed revision
alter the character of a discriminatory citizenship status or national origin. properly reflects the statute’s
policy.’’ Id. at 23 (citing Johnson Regarding this specific example, lawful requirement that a person or entity must
Controls, 499 U.S. at 199); see also permanent residents do not have to engage in ‘‘intentional’’ discrimination.
United States v. Gen. Dynamics Corp., 3 show their permanent resident card or Further, the Department disagrees that a
OCAHO no. 517, 1121, 1163 (1993) ‘‘green card’’ when they start working; person or entity must know it is
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00131 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/6.svg)
![91774 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
discriminating to violate the statute; as discriminatory explanation for its statistical disparities can ‘‘serve an
discussed in the responses to other actions.’’ important role’’ in establishing a prima
comments above, the statute requires Response: The Department disagrees facie case of discrimination, Teamsters,
that an employer intentionally treat that the definition of ‘‘discriminate’’ or 431 U.S. at 339–40, the employer’s
individuals differently based on their any other proposed revision alters the action in the commenters’ example does
citizenship status or national origin. An long-established evidentiary burdens to not amount to discrimination because
employer’s ‘‘knowledge’’ that this prove discrimination, but as discussed the employer did not request more,
disparate treatment constitutes above has added clarifying language to different or specific documents, or reject
‘‘discrimination’’ is not an element of a the definition of ‘‘discriminate’’ to valid documentation, based on a
violation. address any confusion about what is protected class. Even assuming a
Issue: A number of commenters required to show discrimination in different example where a complainant
disagree with the change in terminology violation of the law. makes out a prima facie case of
in § 44.200(a)(3) from ‘‘documentation Section 1324b is modeled after Title discrimination that includes statistical
abuses’’ to ‘‘unfair documentary VII of the Civil Rights Act of 1964, and evidence showing that different
practices.’’ These commenters stated case law under that statute ‘‘has long protected classes presented different
that these changes ‘‘blur[ ] the line of been held to be persuasive in documents, the employer could then
intent required’’ to establish a violation interpreting § 1324b.’’ Sodhi v. provide a legitimate, non-discriminatory
and are part of a ‘‘march toward strict Maricopa Cty. Special Health Care Dist., reason for the statistical disparity. For
liability.’’ 10 OCAHO no. 1127, 7–8 (2008). The instance, the employer may state that
Response: The Department disagrees evidentiary frameworks set forth in the employees volunteered to show
with these comments. As discussed in McDonnell Douglas Corp. v. Green, 411 those documents with no request by the
U.S. 792, 802 (1973), for individual employer. The complainant would then
the NPRM, the change from
claims of discrimination and in have an opportunity to offer evidence
‘‘documentation abuses’’ to ‘‘unfair
International Brotherhood of Teamsters rebutting the employer’s legitimate non-
documentary practices’’ is intended to
v. United States, 431 U.S. 324, 360–62 discriminatory reason. Ultimately, the
more clearly describe the prohibited
(1977), for pattern or practice claims of burden still rests on the complainant to
conduct. In addition, this change in
discrimination apply to cases under prove that the employer requested
terminology more closely tracks the
section 1324b. The Department has specific documents from employees
statutory language and has no impact on
consistently relied on such frameworks based on their protected class.
the intent required to prove a violation.
when litigating cases before OCAHO.
2. Comments regarding the proper Given the above, the Department
Moreover, OCAHO has analyzed cases
evidentiary frameworks for establishing disagrees that the NPRM’s quotes from
under section 1324b using these
discrimination. Several commenters traditional frameworks, including in the Life Generations case are taken out
raise concerns that the proposed Diversified Technology, 9 OCAHO no. of context. While Life Generations
revisions do not comply with the proper 1095, and Life Generations, 11 OCAHO applied the evidentiary framework in
evidentiary frameworks for analyzing no. 1227. The definition of Teamsters, the definition at paragraph
discrimination claims. ‘‘discriminate’’ in the proposed rule (e) applies regardless of whether a case
Issue: A number of commenters claim does not alter the parties’ respective involves an individual claim of
that the rule’s definition of burdens in a pattern or practice claim or discrimination analyzed under
‘‘discriminate’’ shifts the burden to the individual claim, and the McDonnell McDonnell Douglas, a pattern or
employer, contrary to well-established Douglas and Teamsters frameworks set practice claim decided under
discrimination case law. Several forth by the Supreme Court in Teamsters, or a case based on direct
commenters believe the proposed interpreting Title VII continue to apply. evidence of discrimination. What the
definition of ‘‘discriminate’’ ‘‘steamrolls An example provided by several Department wishes to make clear in
over the substance and procedure of commenters helps to illustrate the these proposed revisions, and
well-established Title VII law,’’ and, traditional framework for establishing specifically in the definitions in
according to another commenter, an intentional discrimination claim, paragraphs (e) and (g) of § 44.101 that
converts cases under 8 U.S.C. 1324b to which the proposed revisions do not the Department is adopting in this rule,
‘‘disparate impact cases that are outside change. In this example, an employer’s is that an employer cannot overcome
of OSC’s jurisdiction.’’ One commenter Forms I–9 show ‘‘that the overwhelming evidence of discrimination simply by
claims that the Department is seeking to majority of non-citizens had provided a claiming that the discriminatory
import a complainant’s burden of proof List A document (their [Form I–551 behavior (which in the context of unfair
at the liability stage in a pattern or Permanent Resident] card), whereas the documentary practices would be
practice case to the disparate treatment overwhelming majority of U.S. citizens requests for more, different, or specific
circumstantial evidence context. This had provided a List B and a List C documents, or the rejection of valid
commenter insists that paragraph (e)’s document,’’ and ‘‘the employer offers no documentation, based on an employee’s
definition of ‘‘discriminate’’ in the guidance to new employees on citizenship status or national origin)
NPRM ‘‘directly contradicts’’ the completing the Form I–9 and accepts was somehow justified because it was
traditional burden-shifting framework precisely the documents volunteered by meant to ‘‘help’’ workers or was not
recognized by OCAHO in U.S. v. the employees.’’ The commenters based on ‘‘ill will’’ or ‘‘animus.’’ Such
Diversified Technology and Services of believe that under the proposed explanations cannot constitute
Virginia, Inc., 9 OCAHO no. 1095, 13 revisions and the recent OCAHO legitimate, non-discriminatory reasons
srobinson on DSK5SPTVN1PROD with RULES
(2003). Yet another commenter states decision in Life Generations, 11 OCAHO because, by their very terms, the
that ‘‘[t]he proposed rule would no. 1227 at 22, the Special Counsel and explanations acknowledge that there is
essentially presume discrimination at OCAHO could nevertheless ‘‘find disparate treatment based on a protected
the first stage.’’ Another commenter discriminatory intent by the employer, class.
believes the proposed revisions would triggering sanctions.’’ This concern As noted above, the Department
‘‘effectively remove the employer’s misinterprets the proposed revisions agrees that disparate impact liability is
ability to offer any defense or non- and the Life Generations case. Although unavailable under section 1324b. None
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00132 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/7.svg)
![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 91775
of the proposed revisions affects that instructive in interpreting section economic injury to establish a violation
conclusion. 1324b. under section 1324b(a)(6). Moreover, the
Issue: In contrast to the comments The Department also disagrees with harm or ‘‘unfavorable’’ treatment in a
above, one commenter believes that 8 the commenter’s suggestion that because claim under section 1324b(a)(6) is
U.S.C. 1324a offers the preferred section 1324a requires employers to subjecting a worker to a discriminatory
framework over Title VII for interpreting treat certain individuals differently in document request or rejection based on
discrimination under 8 U.S.C. 1324b. particular contexts based on their the worker’s citizenship status or
This commenter states that section employment authorization, citizenship national origin. This has been the
1324b ‘‘is not a ‘stand-alone’ anti- status and national origin should be statutory requirement since the 1996
discrimination statute, and that [the viewed as qualitatively different than amendments, and the proposed
Special Counsel] cannot interpret the other protected classes. Section 1324b revisions make no change to the
statute as if it were. Rather, § [1324b] is carefully lays out the available elements required to establish a
irrevocably tethered to the scope of the exceptions to the general prohibition violation.
employer sanctions regime, and [the against discrimination based on
Special Counsel’s] regulatory citizenship status or national origin. See Definitions
jurisdiction does not extend beyond 8 U.S.C. 1324b(a)(2)(A), (a)(2)(C), (a)(4). The Department received several
those anti-discrimination concerns that Apart from those exceptions, the comments regarding the definitions in
are reasonably related to employer Department believes that citizenship § 44.101 and discusses them below.
sanctions or the employment status and national origin should be Issue: The Department received one
verification requirements of § [1324a].’’ viewed and analyzed in the same comment on the definition of ‘‘charge’’
This commenter points to a shared manner as any other protected class for in paragraph (a). The commenter
historical context for the two provisions discrimination purposes. disagrees with the change in this
and the fact that 8 U.S.C. 1324a requires 3. Comments on the ‘‘harm’’ required definition to eliminate the requirement
that employers treat certain individuals to establish a violation of section upon a charging party to identify the
differently in particular contexts based 1324b(a)(6). The Department received a injured party’s specific immigration
on the lack of, type of, or duration of number of comments regarding how, if status to satisfy the regulatory definition
employment authorization. This at all, the proposed revisions would of a charge. According to this
commenter further states that ‘‘Congress change the conduct required to establish commenter, this change may cause the
intended § [1324b] . . . to account for an unfair documentary practice, namely, Special Counsel to ‘‘not properly
the particular complexities in the what is required to establish a ‘‘harm’’ allocate its resources’’ because the
immigration field that differ from the under the statute. Special Counsel would not have
broader and more absolute prohibitions Issue: One commenter expresses information about immigration status.
against employment discrimination in support for the proposed revisions to The comment also states that if the
the Title VII context,’’ and that § 44.200(a)(3), and states that it is Department has eliminated the
‘‘§ [1324b] stands . . . on a different ‘‘entirely consistent with the statute’s requirement to provide immigration
footing from other types of employment remedial scheme to allow OSC or a status information ‘‘because persons in
discrimination.’’ private complainant to seek to remedy the U.S. are sometimes unclear as to
Response: The Department does not unfair documentary practices even their legal status, then that point further
believe any change to the rule is where no employee has experienced evidences the complexity of this system
required by this comment. It is well- economic harm, as both reviewing for employees and employers alike.’’
accepted that section 1324b should be courts and administrative law judges Response: The Department declines to
read within the context of the have held.’’ change this definition as proposed. The
overarching scheme that Congress Response: The Department charging party is still required to
created in IRCA. However, employers appreciates this comment. provide citizenship status information,
that comply with section 1324a can also Issue: A number of commenters state and nothing in the regulations prohibits
comply with section 1324b, and the fact that this rule would remove the the Special Counsel from requesting
that the law requires employers to treat requirement to show an individual was additional information, as needed,
employees differently based on their ‘‘harmed’’ to establish liability. The regarding the injured party’s
immigration status in some instances commenters do not specify what they immigration status. As discussed in the
under section 1324a does not justify refer to as ‘‘harm,’’ though some NPRM, immigration status information
using a different standard for what specifically pointed to the proposed is not required to determine whether the
discrimination under section 1324b revision’s clarification at Special Counsel has jurisdiction to
means, thereby departing from black § 44.200(a)(3)(ii), which explains that a investigate an alleged unfair
letter civil rights law and the Special violation of section 1324b(a)(6) does not immigration-related employment
Counsel’s long-held positions. OCAHO require proof of an ‘‘economic harm.’’ practice, and the Department will not
has long looked to Title VII case law in Another commenter states that require this information to deem a
interpreting section 1324b. See Sodhi, discrimination under section submission to constitute a charge under
10 OCAHO no. 1127 at 7–8 (‘‘Because 1324b(a)(6) must include some harm § 44.101(a). The Department does not
§ 1324b was expressly modeled on Title other than just treating people believe that the absence of this
VII of the Civil Rights Act of 1964 as differently, such as ‘‘unfavorable’’ information upfront from a charging
amended . . . case law developed under treatment or ‘‘abusive’’ behavior. party will have any effect on its ability
that statute has long been held to be Response: The Department believes to properly allocate resources.
srobinson on DSK5SPTVN1PROD with RULES
persuasive in interpreting § 1324b.’’). no change is warranted by these Issue: The Department received a
The Department agrees with OCAHO comments. As discussed above, a number of comments on the definition
precedent that the evidentiary finding of a violation under the law is of charging party in paragraph (b) and
frameworks and principles that the premised on a showing of its cross reference to the ‘‘injured party’’
Supreme Court has established to discrimination. As discussed in the definition in paragraph (i). These
analyze employment discrimination NPRM, the statutory text does not commenters disagree with the use of the
cases under Title VII are highly include any language requiring an term ‘‘injured party,’’ which is defined
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00133 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/8.svg)
![91776 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
as ‘‘an individual who claims to be status’’ is ambiguous and would require believes that under the definition in the
adversely affected directly by an unfair human resources personnel to be proposed rule, employment processes
immigration-related employment ‘‘immigration law expert[s]’’ to that have nothing to do with satisfying
practice.’’ 28 CFR 44.101(i). The determine what it means. the requirements of section 1324a(b)
commenters state that referring to the Response: The Department disagrees would be covered, such as requesting
person claiming an injury as ‘‘injured’’ with these comments and will adopt the documents as part of vaccination law
before making a determination on the language of the proposed definition compliance, tax law compliance, and
merits of the claim ‘‘essentially without change. The proposed criminal background checks. The
presumes that which must be proven, definition does not address the issue of second commenter states that section
suggesting an effort to write out of the or attempt to modify the classes of 1324b(a)(6) does not cover
statute the requirement to prove individuals who are protected from discrimination involving E-Verify
‘adverse effect’ and moving to a ‘strict unfair immigration-related employment because Congress was aware of
liability’ standard.’’ The commenters practices under the statute. Rather than electronic verification when it amended
believe that ‘‘a party should be a addressing particular immigration section 1324b in 1996 and chose not to
‘charging party’ or an ‘individual’ until statuses, this definition simply makes include ‘‘any electronic system’’ in
they have proven that they are clear that ‘‘citizenship status’’ connotes section 1324b.
‘injured.’ ’’ Another commenter believes more than just whether an individual is Response: The Department declines to
the charging party definition should or is not a U.S. citizen, and also make any change to this definition as
remain as it is or changed to ‘‘a neutral includes a non-U.S. citizen’s proposed in the NPRM. As noted in the
term, such as ‘claimant’ ’’ in order ‘‘to immigration status. See, e.g., Kamal- NPRM, OCAHO has recognized that
eliminate the impression, even if only Griffin v. Cahill Gordon & Reindel, 3 unfair documentary practices can occur
subliminally, that an individual filing a OCAHO no. 568, 1641, 1647 (1993) outside of the actual completion of the
claim has been ‘injured.’ ’’ (‘‘Congress intended the term Form I–9. For example, discriminatory
Response: The Department disagrees ‘citizenship status’ to refer both to documentary requests at the application
with the commenters’ suggestion that by alienage and to non-citizen status.’’). In stage to verify employment eligibility
simply using the term ‘‘injured party,’’ addition, understanding what can constitute unfair documentary
the Department is making a judgment on constitutes immigration status practices in violation of the law. See
the merits of a claim. ‘‘Injured party’’ is discrimination does not require human United States v. Mar-Jac Poultry, Inc.,
defined as ‘‘an individual who claims to resources personnel to be immigration 10 OCAHO no. 1148, 11 (2012)
be adversely affected’’ in order to avoid experts. To comply with this law, the (recognizing potential liability for unfair
any presumption of the merits of the employer does not need to know the documentary practices committed
claim. This term has also been in the intricacies of a particular immigration against job applicants).
regulations since they were initially status or what an individual needs to Discriminatory documentary
promulgated in 1987 without impacting show to qualify for employment given practices, such as requesting more or
the impartiality of the Special Counsel’s such a status. Rather, if an employer, different documents or rejecting valid
investigations. See Unfair Immigration- based on an individual’s immigration documentation, in the E-Verify process
Related Employment Practices, 52 FR status, treats that individual differently likewise violate 8 U.S.C. 1324b(a)(6).
9277 (Mar. 23, 1987) (codified at 28 CFR in the hiring, firing, recruitment or The E-Verify process flows from and is
pt. 44). An ‘‘injured party’’ may or may referral for a fee process, or commits an inextricably intertwined with 8 U.S.C.
not be a ‘‘charging party’’ as the statute unfair documentary practice, the 1324a(b), and E-Verify’s primary
allows that a person acting on behalf of employer may violate the law. Using an purpose is to assist employers with
an individual who ‘‘is adversely affected example from the NPRM, an employer confirming an individual’s work
directly by an unfair immigration- that refuses to hire a refugee based on authorization status once the individual
related employment practice’’ may also that person’s status as a refugee may and the employer have completed the
file a charge. 8 U.S.C. 1324b(b)(1). The well violate section 1324b(a)(1). Form I–9 as required by 8 U.S.C.
Department declines to make any Issue: The Department received three 1324a(b). Contrary to one commenter’s
changes to the definition of ‘‘charging comments on paragraph (f)’s definition assertion, the E-Verify statute, found at
party’’ or ‘‘injured party’’ as proposed. of ‘‘for purposes of satisfying the 8 U.S.C. 1324a note, explicitly
Issue: The Department received three requirements of section 1324a(b).’’ One references 8 U.S.C. 1324a(b) in several
comments about the definition of commenter expresses support for places. See, e.g., 8 U.S.C. 1324a note,
‘‘citizenship status’’ in paragraph (c). paragraph (f)’s definition of ‘‘for secs. 403(a)(2)(A); 403(a)(2)(B)(ii);
One commenter requests that the purposes of satisfying the requirements 403(a)(4)(A); 403(b)(2)(A); 403(b)(3);
Department define ‘‘citizenship status’’ of section 1324a(b)’’ as ‘‘a reasonable 403(b)(4); 403(c). Moreover, when
using a ‘‘flexible definition of construction of the statutory language.’’ Congress created several pilot programs
immigration status’’ that includes Two commenters raise concerns that in 1996, including what would later be
individuals whose status is unclear. paragraph (f) is overly broad. The first named E-Verify, Congress mandated
Another commenter believes that the commenter believes the statute’s reports at the end of the third and fourth
Department is seeking through this prohibition against unfair documentary years of the pilot projects to assess,
definition to expand the class of practices is unambiguous and refers among other things, the degree to which
individuals protected from citizenship only to the Form I–9 process. This these programs ‘‘assist in the
status discrimination beyond those who commenter claims that the use of E- enforcement of section 274A’’ of the
meet the ‘‘protected individual’’ Verify does not ‘‘satisfy the INA. 8 U.S.C. 1324a note, Sec. 405(a)(3).
srobinson on DSK5SPTVN1PROD with RULES
definition in 8 U.S.C. 1324b(a)(3) to requirements of [section] 1324a(b)’’ While Congress authorized the
include all non-citizens. A third because the statute authorizing E-Verify electronic program that would be later
commenter claims that the statute does not explicitly reference section named E-Verify at the same time that it
provides no basis to include 1324a(b), and therefore discrimination last amended section 1324b(a)(6), the
‘‘immigration status’’ in the definition of in the use of E-Verify cannot constitute electronic program did not launch until
‘‘citizenship status.’’ This commenter an unfair documentary practice under 8 1997. History and Milestones of the E-
also stated that the term ‘‘immigration U.S.C. 1324b. This commenter further Verify Program, U.S. Citizenship and
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00134 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/9.svg)
![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 91777
Immigration Services, https:// therefore argue that the statute does not a third party does not mean that an
www.uscis.gov/e-verify/about-program/ apply to a prospective employer’s pre- employer’s hiring efforts cannot
history-and-milestones (last updated hire activity like recruitment. The encompass both recruitment of and
July 15, 2015). Therefore, it is no commenters further claim that there is selection of prospective employees.
surprise that Congress did not include a no authority to include ‘‘onboarding’’ The definition of ‘‘hiring’’ must also
reference to this program in the 1996 processes like training or new employee include the onboarding process to
amendments to section 1324b(a)(6). orientation in this definition. capture all of the steps necessary to
Because an employer’s use of E-Verify Response: The Department declines to select individuals and place them in
is inextricably intertwined with ‘‘the make any changes to this definition as positions to work. Employers vary
requirements of section 1324a(b),’’ the proposed in the NPRM. Nevertheless, widely in their terminology, practices,
use of E-Verify is covered by the based on comments received, the and views regarding what steps are
definition. However, to the extent that Department offers further clarification necessary to complete the selection
an employer adopts a practice that does below. The Department’s proposed process. For instance, some employers
not have the purpose of verifying definition of ‘‘hiring’’ is in line with make a job offer, which the employee
employment authorization, such as OCAHO case law and the Special accepts, but which is conditioned
making document requests for tax or Counsel’s longstanding position that implicitly or explicitly on meeting other
vaccination purposes, that practice discrimination at any point in the hiring requirements like passing drug tests,
would fall outside the scope of the process can violate the statute. At the completing a formal application, or
definition and the law’s prohibition outset, an employer that asks all completing the Form I–9. This
against unfair documentary practices. applicants whether they are eligible to ‘‘selection’’ of a candidate is only
Issue: Several commenters express work would not violate the statute tentative; it is not final because it is
concern about the definition of ‘‘hiring’’ because there would be no differential conditioned on the completion of other
at paragraph (h). One commenter claims treatment based on citizenship status or tasks.
that this definition ‘‘would now include national origin. As a result, and contrary Including onboarding in the
an unlimited range of employer to one commenter’s concern, this definition of ‘‘hiring’’ would ensure that
activity,’’ and that ‘‘any employer proposed definition would not affect an all these steps to place an individual in
conduct may constitute discrimination employer’s ability to ask all job a position to start work are covered by
(regardless of intent) during the pre-hire applicants about eligibility to work in the statute. For instance, the definition
process.’’ This commenter also raises the United States. would capture such practices as
concerns that this new definition would The Department further disagrees that discriminatory background checks that
interfere with an employer’s ability to this definition imputes any liability to may occur after a conditional offer is
ask applicants general questions about an employer for acts of employees that made and accepted, but before actual
eligibility to work in the United States could not already be imputed to an employment begins. To the extent that
and to ask questions associated with a employer under the statute, regulations employers impose background checks
post-hire background check, including in effect today, and relevant case law. on new hires in a discriminatory
asking an applicant to identify the The question of when an employer is manner based on citizenship status or
applicant’s country of origin, present an liable for the acts of its employees is national origin, this could violate the
identification document from the very fact-specific and is not addressed law. Finally, an employer that requests
applicant’s country of origin, or respond by this proposed definitional change. documentation as part of the
to questions about issues that arise in Although the Department agrees that background check process as a proxy for
the background check. recruitment as used in paragraph (h) verifying authorization to work based on
One commenter raises a concern that could not include ‘‘recruitment for a a worker’s citizenship status or national
the proposed definition is so broad that fee,’’ the Department distinguishes origin, may violate the statute’s
it would ‘‘require every person working between ‘‘recruiting’’ that occurs in the prohibition against discrimination in
for a single employer to be a Form I–9 process of hiring an individual and hiring, in addition to the prohibition
expert’’ and suggests that the proposed ‘‘recruiting for a fee’’ as used in the against unfair documentary practices.
definition would expand liability for statute. While recruitment by an This view is consistent with OCAHO
employers based on the acts of those employer is the act of soliciting case law, which has ‘‘long held that it
who are not ‘‘decision maker[s],’’ using, applicants and applications, recruiting is the entire selection process, and not
as one example, an 18-year old assembly for a fee involves a third party soliciting just the hiring decision alone, which
line worker who tells his sibling that his applicants as a paid service to an must be considered in order to ensure
employer is hiring and to ‘‘go to the employer. The Department believes that that there are no unlawful barriers to
office’’ and ‘‘bring your license, social an employer soliciting applicants and opportunities for employment.’’ Id. For
security card and green card.’’ applications must be included in the instance, in United States v. Townsend
Other commenters criticize the definition of ‘‘hiring’’ because such Culinary, Inc., 8 OCAHO no. 1032, 454,
definition’s inclusion of ‘‘recruitment’’ recruiting activity is an integral part of 510–11 (1999), OCAHO found that
and ‘‘onboarding.’’ These commenters the selection process. Recruiting may discrimination in the employment
cite to United States v. Mar-Jac Poultry, impact, and in some cases determine, eligibility verification process (which
Inc., 10 OCAHO no. 1148, 11 (2012) and who learns about the job vacancy, who occurred at the onboarding stage)
Mid-Atlantic Reg’l Org. Coal. v. Heritage applies for a position, and who is violated not only the statute’s
Landscape Servs., 10 OCAHO no. 1134, selected for a position. Including prohibition against unfair documentary
8 (2012), as support for a narrower recruiting in the definition of ‘‘hiring’’ practices but also the statute’s general
srobinson on DSK5SPTVN1PROD with RULES
definition of ‘‘hiring’’ that would is also supported by OCAHO case law. prohibition against discrimination in
include only ‘‘the entire selection See, e.g., Mid-Atlantic Reg’l Org. Coal., hiring, firing, and recruitment or referral
process.’’ The commenters argue that 10 OCAHO no. 1134 at 8 (noting that for a fee under 8 U.S.C. 1324b(a)(1).
there is only one reference to section 1324b ‘‘specifically applies to Issue: The Department received one
‘‘recruitment’’ in both 8 U.S.C. 1324a recruitment for employment as well as comment on the definition of ‘‘more or
and 8 U.S.C. 1324b, namely, to hiring’’). Finally, the statute’s explicit different documents than are required
‘‘recruitment or referral for a fee,’’ and reference to ‘‘recruitment for a fee’’ by under such section’’ in paragraph (j).
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00135 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/10.svg)
![91778 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
This commenter believes that the statute acceptable Form I–9 documents a Charge Processing
does not provide support for the worker can present due to the worker’s Issue: A number of commenters raise
definition’s inclusion of ‘‘any limitation protected class is likely to violate the concerns about paragraph (d) of
on an individual’s choice of acceptable statute. § 44.301,which allows a 45-day period
documentation to present to satisfy the Issue: The Department received one for a charging party to provide requested
requirements of 8 U.S.C. 1324a(b).’’ This comment on the definition of ‘‘protected information to allow the Special
commenter also believes the definition individual’’ in paragraph (k). This Counsel to determine whether to deem
is confusing because Form I–9 rules commenter raises a concern that the what is initially an inadequate
already impose limitations on which submission a charge. Some commenters
definition excludes lawful permanent
documents individuals completing the believe that there is no statutory support
residents who do not apply for
Form I–9 may present. The commenter for the use of such a grace period,
naturalization within six months of the
further raises the example of E-Verify’s pointing to what the commenters
date the lawful permanent resident first
requirement that an individual who believe are ‘‘specific and relatively strict
chooses to show a List B document for becomes eligible.
Response: The Department will not filing deadlines.’’ Another commenter
the Form I–9 for an employer that uses
make the change proposed by the claims that the proposed revision would
E-Verify can only show a List B
commenter because the definition of ‘‘in practice all but eliminate’’ the 45-
document that contains a photo.
Response: The Department disagrees day period because the Special Counsel
‘‘protected individual’’ comes directly
with this comment and is adopting the could proceed to investigate while
from the statute at 8 U.S.C. 1324b(a)(3),
definition as the Department proposed waiting for the missing information
and only Congress can change the
with no change. For the reasons even if the individual never provides
meaning of ‘‘protected individual.’’
discussed in the NPRM, OCAHO case the information.
However, the Department is modifying Response: The Department disagrees
law supports the reading of the statute the definition of ‘‘protected individual’’ with these comments and is adopting
reflected in this definition, and the to make the regulatory language mirror
Special Counsel’s longstanding position the language as the Department
the statutory language by adding the proposed with no changes. The
has been that discriminatory requests words ‘‘granted the status of’’ to
for specific documents violate the Department agrees with commenters
paragraph (k)(3). that the statute requires that the
statute. See, e.g., Townsend Culinary,
Issue: One commenter expresses charging party file a charge within 180
Inc., 8 OCAHO no. 1032 at 507; United
States v. Strano Farms, 5 OCAHO no. support for the definition of days of the alleged unfair immigration-
748, 206, 222–23 (1995); United States ‘‘recruitment and referral for a fee’’ in related employment practice. However,
v. Beverly Ctr., 5 OCAHO no. 762, 347, paragraph (l) and also asks the the statute also gives the Attorney
351 (1995); United States v. A.J. Bart, Department to clarify that ‘‘the General broad discretion to determine
Inc., 3 OCAHO no. 538, 1374, 1387 exclusion of union hiring halls applies what information is necessary to
(1993); see also United States v. Zabala to’’ this definition ‘‘in the same manner constitute a charge. 8 U.S.C. 1324b(b)(1)
Vineyards, 6 OCAHO no. 830, 72, 85– as [the exclusion] applies to the parallel (‘‘Charges shall be in writing under oath
88 (1995) (holding, prior to the phrases in 8 CFR 274a.1(d) & (e).’’ or affirmation and shall contain such
enactment of IIRIRA, that 8 U.S.C. Response: The Department agrees information as the Attorney General
1324b(a)(6) did not prohibit an with the commenter that the definition requires.’’). Pursuant to the authority
employer’s request for specific at paragraph (l) as proposed excludes granted in 8 U.S.C. 1324b(b)(1), the
documents ‘‘in the absence of evidence union hiring halls. This definition has Attorney General has provided several
that . . . aliens but not other new hires the same meaning as ‘‘recruit for a fee’’ ways a charging party can meet its
were required to rely on and produce and ‘‘refer for a fee,’’ respectively, in 8 charge filing obligations. First, a
specific documents’’). CFR 274a.1, and those definitions charging party can timely file a charge
Regarding the comment that the expressly exclude union hiring halls as that on its face satisfies the definition of
definition is confusing in light of well. ‘‘charge’’ at § 44.101(a). Second, a
existing limitations on the documents charging party can file a submission that
Issue: One commenter requests that is ‘‘inadequate to constitute a complete
individuals can provide, the examples
the Department add a definition to the charge as defined in § 44.101(a)’’ but
the commenter provides do not involve
rule to ‘‘clarify that [section 1324b of] then provide additional information to
an employer imposing a limitation
the INA protects all work authorized make the charge ‘‘complete.’’ Section
based on an individual’s citizenship
individuals from unfair documentary 44.301(d)(1) and (d)(2). Third, the
status or national origin. The fact that
practices.’’ This commenter believes the Special Counsel can deem a submission
Form I–9 rules impose, as the
proposed rule ‘‘does not adequately to ‘‘be a complete charge even though it
commenter states, ‘‘limitation[s] on the
documents that may be presented’’ does guard all work-authorized individuals is inadequate to constitute a charge as
not implicate a specific discrimination from unfair documentary practices.’’ defined in § 44.101(a).’’ Section
concern. In the commenter’s example The commenter states that while there 44.301(e). As long as the initial
involving an E-Verify user, if an is a conflict in the case law on this submission is timely, nothing in the
employer specifies that a worker who issue, it believes that ‘‘the more statute prevents the Attorney General
wishes to show a List B document can persuasive cases hold that the from later deeming the submission to be
only show a List B document with a prohibition on document abuse, 8 a charge.
photo based on the employer’s use of E- U.S.C. 1324b(a)(6), extends to all work- The Department’s regulations on the
srobinson on DSK5SPTVN1PROD with RULES
Verify, and applies this E-Verify authorized individuals.’’ handling of inadequate submissions are
obligation consistently regardless of its Response: The Department declines to consistent with case law interpreting
workers’ citizenship status or national add regulatory language addressing this similar statutory language in Title VII.
origin, the employer would not violate issue. The Department notes that the See Edelman v. Lynchburg Coll., 535
the statute because of that specification. revised rule incorporates the amended U.S. 106, 109 (2002) (upholding an
However, an employer that imposes statutory language found in 8 U.S.C. EEOC regulation that permitted ‘‘an
limitations on the types of valid and 1324b(a)(6). otherwise timely filer to verify a charge
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00136 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/11.svg)
![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 91779
after the time for filing has expired.’’). provides that the Special Counsel shall investigatory power under section
Like section 1324b, Title VII contains dismiss charges and submissions 1324b to seek written interrogatory
time limits for filing charges. 42 U.S.C. received more than 180 days after the answers or to require that respondents
2000e–5(e)(1). Title VII also contains date of alleged discrimination ‘‘unless create evidence not yet in existence.
language nearly identical to the the Special Counsel determines that the Another commenter claims that this
language in 8 U.S.C. 1324b(b)(1). 42 principles of waiver, estoppel, or new ‘‘broad, sweeping authority’’ would
U.S.C. 2000e–5(b) (‘‘Charges shall be in equitable tolling apply.’’ allow the Special Counsel to ‘‘subpoena
writing under oath or affirmation and Response: The Department anything, in any format, at any time.’’
shall contain such information and be in appreciates this comment. As discussed For example, this commenter asks
such form as the Commission more in the NPRM, these principles are whether this would mean that
requires.’’). Like the Department, the well-established in relevant ‘‘employers must now keep Forms I–9
EEOC has promulgated regulations administrative decisions. See, e.g., for an indefinite period of time,’’ a
governing what information is required Lardy v. United Airlines, Inc., 4 OCAHO requirement that in this commenter’s
to file a charge. See 29 CFR 1601.12(a) no. 595, 31, 73 (1994); Halim v. Accu- view could violate other federal and
(laying out information to be contained Labs Research, Inc., 3 OCAHO no. 474, state laws.
in a charge); 29 CFR 1601.12(b) 765, 779 (1992). Response: The Department disagrees
(providing that notwithstanding the Issue: The Department received three with these comments and is adopting
requirements for a charge’s contents in comments criticizing the proposed the language as proposed with no
paragraph (a), a charge can be language in § 44.301(g) regarding the changes. First, neither the law nor the
‘‘amended’’ to ‘‘cure technical defects or acceptance of charges more than 180 regulations on their face violate the
omissions, including failure to verify days after the alleged violation where Fourth Amendment. See United States
the charge, or to clarify and amplify principles of waiver, estoppel or v. Salerno, 481 U.S. 739, 745 (1987)
allegations made therein’’ and that equitable tolling apply. One commenter (Facial challenges are ‘‘the most difficult
amendments regarding acts ‘‘related to objects to § 44.301(g)’s lack of express . . . to mount successfully.’’); City of
or growing out of the subject matter of language describing the frequency with Los Angeles v. Patel, 135 S. Ct. 2443,
the original charge will relate back to which the principles of waiver, 2450 (2015) (‘‘[C]laims for facial relief
the date the charge was first received.’’). estoppel, or equitable tolling will apply. under the Fourth Amendment are
The Supreme Court in Edelman upheld Another commenter claims that it is unlikely to succeed when there is
the EEOC’s rule regarding charges filed ‘‘not appropriate’’ for the Special substantial ambiguity as to what
under Title VII as ‘‘reasonable.’’ 535 Counsel ‘‘to accept late filings at its conduct a statute authorizes.’’); Sibron
U.S. at 114. While the Department is discretion’’ because it ‘‘subjects v. New York, 392 U.S. 40, 59 (1968)
adopting regulatory language distinct employers to uncertainty and lack of (‘‘The constitutional validity of a
from that in the EEOC’s regulations, the finality.’’ A third commenter states that warrantless search is pre-eminently the
same reasoning supports the Attorney these ‘‘‘equitable’ provisions provide the sort of question which can only be
General’s authority to determine the Special Counsel with immense leeway decided in the concrete factual context
information required for a charge and to to obviate the statutory 180-day filing of an individual case.’’). If a person or
adopt these regulations regarding charge deadline’’ in section 1324b. entity believes that in a particular case
processing. Response: The Department is satisfied the Department is applying the statute
Moreover, the Department’s decision that the explanation provided in the or regulations in an unconstitutional
to maintain a 45-day grace period for preamble and acknowledged by the manner, they may bring an as-applied
submitting additional information commenters—that those equitable constitutional challenge.
promotes certainty and finality for modifications of filing deadlines would Second, the Department agrees that
respondents and the Special Counsel by be ‘‘sparingly applied’’—is sufficient. while a person or entity being
using a definite timeframe for the Because the Department will make investigated must respond to requests
charging party to provide the requested exceptions only rarely, the Department for information and also respond to
information. The regulations are does not agree that this proposed change requests for documents that already
necessary to prevent the Special creates the level of uncertainty and lack exist, the person or entity is not
Counsel from investigating claims that of finality that outweighs the need for required to otherwise create new
clearly fall outside of its jurisdiction, flexibility in rare circumstances, such as documents or to provide documents in
while at the same time ensuring that where the charging party’s untimely a format that does not exist at the time
timely-filed meritorious submissions filing was due to circumstances beyond of the subpoena. For example, if an
that may be missing some information the charging party’s control. As noted in employer does not make and retain
can still be considered timely. The the response to the previous comment, copies of Form I–9 documentation, the
statute’s remedial purpose would be these principles are well-established in employer is not obligated to provide
frustrated, and meritorious claims relevant administrative decisions. copies of Form I–9 documentation, nor
would be foreclosed, if the Special should it ask its employees to provide
Investigation a copy or present their documentation
Counsel imposed a harsh and rigid rule
requiring dismissal of timely-filed Issue: Some commenters claim that anew to make copies. However, the
charges that may allege a violation of § 44.302 would substantially broaden Department disagrees that the proposed
section 1324b, but that do not initially the Special Counsel’s investigatory revisions in the NPRM require
set forth all the elements necessary to be powers without a legal basis and in a otherwise. Moreover, Department
deemed a complete charge. way that would raise constitutional regulations have allowed the Special
srobinson on DSK5SPTVN1PROD with RULES
Issue: One commenter writes in concerns under the Fourth Amendment, Counsel to propound interrogatories
support of § 44.301, which sets forth all without sufficient explanation as to since originally promulgated in 1987,
how the Special Counsel handles the reasons. These commenters also cite which is consistent with the Special
submissions and charges received more to In re Investigation of Charge of Estela Counsel’s authority to have, ‘‘in
than 180 days after the date of alleged Reyes-Martinon v. Swift & Co., 9 accordance with regulations of the
discrimination. This commenter appears OCAHO no. 1058 (2000), to assert that Attorney General[,] . . . reasonable
to refer to language in paragraph (g) that the Special Counsel lacks the access to examine evidence of any
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00137 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/12.svg)
![91780 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
person or entity being investigated.’’ 8 to an allegation or how to apply that this proposed revision will cause
U.S.C. 1324b(f)(2). ‘potentially relevant’ formulation.’’ investigations under this law to go ‘‘in
The Department also disagrees with Response: The Department disagrees perpetuity’’ and that the timeframe to
the comment that the Swift decision with this commenter’s suggested file a complaint would be ‘‘excessive
precludes the Special Counsel from conclusions but is providing here and unreasonable.’’ The commenter
propounding interrogatories. Although additional explanation for the further believes this change will
these commenters are correct that the proposals. OCAHO has acknowledged promote abusive and costly litigation
ALJ in Swift determined that OCAHO that an employer is on notice of its and asks the Department to reconsider.
lacked authority to order a party to obligation to preserve potentially A different commenter disagrees with
respond to interrogatories propounded relevant evidence when it receives the Department’s interpretation of the
by the Special Counsel, 9 OCAHO no. notice of a charge filed against it under statutory language, reading the statute to
1058 at 14, the ALJ also recognized that section 1324b. See Sefic v. Marconi, 9 limit the Special Counsel to filing a
the Special Counsel might still have the OCAHO no. 1123, 13–14 (2007). In complaint by the end of the additional
authority to propound interrogatories, Sefic, OCAHO cited to Occidental Life 90-day period during which the Special
id. at 8, 13, and also acknowledged that Ins. Co. v. EEOC, 432 U.S. 355, 372 Counsel continues to have the right to
other OCAHO ALJs had ordered (1977), for the proposition that ‘‘unlike investigate the charge and file a
respondents to comply with subpoenas a litigant in a private suit who may get complaint. Another commenter states
seeking both documents and answers to notice only when a complaint is filed, that this proposed revision is
interrogatories. Id. at 12–13. The ALJ in a Title VII defendant gets notice of the ‘‘extremely burdensome and disruptive
Swift further acknowledged but possibility of a suit when the charge is to employers.’’ A different commenter
declined to follow a prior case, In re served.’’ Sefic, 9 OCAHO no. 1123 at 14. states that ‘‘this puts employers in the
Investigation of Strano Farms, in which Paragraph (d) reflects this obligation. position of having to potentially wait
a different ALJ held that ‘‘the fact that Moreover, the paragraph applies the years to know whether a claim will be
the evidence sought in the subpoena at preservation obligation to any alleged pursued.’’
issue does not currently exist in unfair immigration-related employment Response: The Department declines to
documentary form does not invalidate practice, meaning that the respondent make any changes to § 44.303(d) as
the subpoena in question.’’ 3 OCAHO has notice of the alleged violation(s) that proposed because the proposed revision
no. 521, 1217, 1223 (1993). Because the Special Counsel is investigating. makes no change to the applicable
Swift concerned OCAHO authority, not What constitutes ‘‘potentially statutory time limits for charge-based
the Special Counsel’s authority, and in relevant’’ evidence will vary depending complaints filed by the Special Counsel
light of the conflict in case law, the upon the scope of the Special Counsel’s and is consistent with case law under
Department does not believe Swift is investigation and the evidence the both this law and a similar provision in
determinative on this issue. The employer has. In the context of an Title VII. See, e.g., United States v.
Department is relying on the broad investigation by the Special Counsel, Agripac, Inc., 8 OCAHO no. 1028, 399,
authority under 8 U.S.C. 1324b(f)(2) and potentially relevant evidence will often 404 (1999); United States v. Gen.
OCAHO case law that supports the include evidence relating to a person or Dynamics Corp., 3 OCAHO no. 517,
Special Counsel’s ability to propound entity’s recruiting, hiring, employment 1121, 1156–57 (1993); Occidental Life
interrogatories and, when necessary, eligibility verification, and firing Ins. Co. of Calif. v. EEOC, 432 U.S. 355,
seek a subpoena to obtain answers. This policies and practices. As with other 361 (1977). As noted in the NPRM, the
is in accord with the Special Counsel’s types of employment discrimination proposed revisions simply clarify that
current practice of requesting both claims, this may commonly include job the Special Counsel is not bound by the
documents and information during applications, personnel records, a statutory time limits for filing a
investigations and obtaining a subpoena person or entity’s policies, and complaint that are applicable to private
from OCAHO as necessary to ensure applicant flow information. Potentially actions. Moreover, the Department does
that the Special Counsel receives relevant evidence under section 1324b not anticipate any significant changes to
needed information and documents. will also include Forms I–9 along with the speed with which it handles its
Third, regarding concerns on Form I– any attachments, and E-Verify investigations, and any costs that
9 retention requirements, while an information. The Department notes that employers incur as a result of protracted
employer being investigated is obligated these examples are merely illustrative litigation exist regardless of this
to maintain potentially relevant and by no means reflect the universe of proposed revision. For the reasons
documents, which would include Forms what can be considered potentially discussed in the NPRM, the Department
I–9, other employers are subject only to relevant to an investigation by the believes this proposed revision is
the general retention requirements in Special Counsel. After considering the appropriate.
section 1324a and any other federal, public comments, the Department is Issue: A number of comments address
state or local record retention adopting this paragraph as it was the proposed revision to § 44.304(b)
obligations (including any preservation proposed. regarding the timeframe for the Special
requirements under other Counsel to file a complaint with
investigations/suits). Authority To File OCAHO Complaints OCAHO based on an investigation
Issue: One commenter questions why Issue: Several commenters disagree opened at the Special Counsel’s
the Department has sought to codify a with the proposed revision to initiative. One commenter expresses
respondent’s preservation obligations in § 44.303(d) regarding the timeframe for support for the proposed revision,
§ 44.302(d), asserting that the proposed the Special Counsel to file a charged- stating that ‘‘[i]t is in the interest of all
srobinson on DSK5SPTVN1PROD with RULES
document retention provisions ‘‘are based complaint with OCAHO. One of parties—employers, employees, and
overly vague, confusing, and these commenters raises a concern that OSC—if this filing deadline is removed
unnecessary.’’ In particular, the the Department is attempting to extend so that OSC can thoroughly and
commenter said that ‘‘[t]he proposal the applicable statute of limitations for accurately investigate a case before
gives little guidance to employers the Special Counsel to file a complaint, formally filing a case against an
concerning how they are to determine rather than clarifying existing statutory employer.’’ This commenter also states
what evidence is ‘potentially relevant’ limitations. This commenter believes that ‘‘nothing in the Immigration and
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00138 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/13.svg)
![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 91781
Nationality Act . . . provides for a filing a charge-based complaint, not—as one for imposing a time limit for the Special
deadline for these cases’’ and ‘‘[t]he commenter suggests—when discussing Counsel to bring an action involving
[EEOC], a sister federal agency that the Special Counsel’s time limits for civil penalties is not new, but rather,
protects against employment filing a complaint based on an reflects the Department’s long-standing
discrimination, has no similar filing independent investigation that the position regarding the outer time limits
deadline.’’ Special Counsel opened pursuant to 8 imposed on the Special Counsel. As
Several commenters are critical of the U.S.C. 1324b(d)(1). The Department discussed in the NPRM, similar to the
proposed revision. Some commenters agrees with the commenter that Agripac EEOC, the Special Counsel is still bound
believe ‘‘[t]he Special Counsel’s time to was not based on an independent by equitable limits on the filing of a
bring a complaint and the scope of that investigation opened pursuant to 8 complaint. See EEOC v. Propak
complaint should be consistent with U.S.C. 1324b(d)(1). The Department Logistics, Inc., 746 F.3d 145 (4th Cir.
Congress’ clear directive in Section cited to Agripac and General Dynamics 2014).
1324b(d)(3).’’ These commenters appear Corporation in the NPRM for the
to believe that because the statute lays Other Comments
broader proposition that the Special
out a clear timeframe for filing charges, Counsel is not bound by the statutory Issue: Two commenters express
there should be a comparable limit on time limits that are applicable to support for reforming U.S. immigration
the timeframe imposed on the Special individuals filing private actions, and laws and in particular reforming
Counsel for filing a complaint. One cited to Occidental Life Insurance as immigration laws for employment-based
commenter disagrees with the instructive given the similar charge- visas. One commenter raised concerns
Department’s reading of the statute, filing procedures and virtually identical about the wait times for beneficiaries of
insisting that it requires the Special timetables found in Title VII. The employment-based visas.
Counsel to file a complaint within 180 Department has considered the view Response: These comments fall
days of the discriminatory act. Another expressed by this commenter. However, outside the scope of this rule. The
commenter argues that the NPRM the Department is not changing its long- proposed revisions implemented by this
inappropriately relies on Agripac, Inc., held interpretation of 8 U.S.C. final rule do not change U.S.
8 OCAHO no. 1028, and General 1324(d)(3), but rather, is conforming the immigration laws or the employment-
Dynamics Corp., 3 OCAHO no. 517, for regulatory text to more closely align based visa process, including wait
the proposition that ‘‘the statute with the statutory text. times. The proposed revisions
contains no time limits for an Issue: Some commenters object more implement existing law prohibiting
independent investigation.’’ This broadly to the clarified time limitations unlawful employment discrimination
commenter similarly dismisses the for the Department to file a complaint, based on citizenship status or national
Department’s reliance on Occidental based on a view that the timelines are origin.
Life Insurance, 432 U.S. 355. Other contrary to public policy. In particular, Issue: One commenter raises concerns
commenters point to the original these commenters state that a longer about the Form I–9 employment
regulatory text as support for why the deadline for the Department to file eligibility verification process and asked
Department cannot revise that complaints would interfere with the that ‘‘everyone, federal agencies,
regulatory text to align more closely availability of witnesses, employers’ employers and employees, lawyers,
with the statutory text. ability to preserve evidence, and Congress, etc. should together establish
Response: The Department declines to witnesses’ ability to recall the events in a timely efficient effective employment
make any change to § 44.304(b) as question, and would burden employers verification process, or scrap it.’’
proposed. As discussed in the NPRM, by requiring a longer document Response: USCIS, within DHS,
the most reasonable application of 8 retention period. A number of publishes the Form I–9 and
U.S.C. 1324b(d)(3), which specifies that commenters also object to the accompanying guidance and determines
‘‘[n]o complaint may be filed respecting Department’s reliance on a five-year which documents are acceptable for
any unfair immigration-related limitations period under 28 U.S.C. 2462 employment eligibility verification,
employment practice occurring more for bringing actions to impose civil pursuant to the requirements of 8 U.S.C.
than 180 days prior to the date of the penalties. 1324a. This issue falls outside the scope
filing of the charge with the Special Response: The Department will make of this rule and the Department refers
Counsel,’’ is that the Special Counsel no changes to its clarified time the commenter to USCIS for more
may not file a complaint unless the limitations for filing a complaint in information on this issue.
Special Counsel opened an investigation either § 44.303(d) or § 44.304(b) and is Issue: One commenter seeks guidance
on the Special Counsel’s own initiative adopting these subsections as proposed on whether an employer may refuse to
pursuant to 8 U.S.C. 1324b(d)(1) within with no changes. These timelines are accept for employment eligibility
180 days of the last known act of consistent with the statute and OCAHO verification purposes a driver’s license
discrimination, as the opening of the case law cited in the NPRM and or identification card issued by a state
Special Counsel’s investigation is the discussed in the prior comment that does not have ‘‘citizenship
nearest equivalent to the filing of a response above. In addition, section requirements.’’
charge. This reading of the statute is 1324b is aimed at stopping Response: USCIS publishes the Form
also supported by case law. See United discriminatory practices and providing I–9 and accompanying guidance and
States v. Fairfield Jersey, Inc., 9 OCAHO redress for victims of discrimination. In determines which documents are
no. 1069, 5 (2001) (acknowledging the the Department’s view, public policy acceptable for employment eligibility
absence of a statutory time limitation for would not be served by imposing time verification. This issue falls outside the
srobinson on DSK5SPTVN1PROD with RULES
the filing of a complaint arising out of limitations on this remedial statute that scope of this rule and the Department
an independent investigation). are unsupported by the statutory refers the commenter to USCIS for more
Furthermore, in the NPRM the language. Furthermore, any delays or information on this issue.
Department cited to Agripac, General costs associated with protracted Issue: One commenter requests
Dynamics Corporation, and Occidental litigation exists independent of this guidance on the issue of states
Life Insurance when discussing the proposed revision. Finally, the recognizing other states’ driver’s
Special Counsel’s time limits for filing Department’s reliance on 28 U.S.C. 2462 licenses and ‘‘certifications’’ as ‘‘valid
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00139 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/14.svg)
![Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 91789
Organization and functions (government (4) Conduct, handle, and supervise employment practice is discrimination
agencies), Privacy, Reporting and litigation in U.S. District Courts for based on national origin, citizenship
recordkeeping requirements, judicial enforcement of subpoenas or status, or both; or involves intimidation
Whistleblowing. orders of administrative law judges or retaliation; or involves unfair
regarding unfair immigration-related documentary practices;
28 CFR Part 44 (7) Indicates the citizenship status of
employment practices;
Administrative practice and (5) Initiate, conduct, and oversee the injured party;
procedure, Equal employment activities relating to the dissemination (8) Indicates, if known, the number of
opportunity, Immigration. of information to employers, employees, individuals employed on the date of the
For the reasons stated in the and the general public concerning alleged unfair immigration-related
preamble, the Attorney General amends unfair immigration-related employment employment practice by the person or
28 CFR parts 0 and 44 as follows: practices; other entity against whom the charge is
(6) Establish such regional offices as being made;
PART 0—ORGANIZATION OF THE may be necessary, in accordance with (9) Is signed by the charging party
DEPARTMENT OF JUSTICE regulations of the Attorney General; and, if the charging party is neither the
(7) Perform such other functions as injured party nor an officer of the
■ 1. The authority citation for part 0 the Assistant Attorney General, Civil Department of Homeland Security,
continues to read as follows: Rights Division may direct; and indicates that the charging party has the
Authority: 5 U.S.C. 301; 28 U.S.C. 509, (8) Delegate to any subordinate any of authorization of the injured party to file
510, 515–519. the authority, functions, or duties vested the charge;
■ 2. Section 0.53 is revised to read as in the Special Counsel. (10) Indicates whether a charge based
follows: ■ 3. Revise part 44 to read as follows: on the same set of facts has been filed
with the Equal Employment
§ 0.53 Immigrant and Employee Rights PART 44—UNFAIR IMMIGRATION- Opportunity Commission, and if so, the
Section. RELATED EMPLOYMENT PRACTICES specific office and contact person (if
(a) The Immigrant and Employee known); and
Sec.
Rights Section shall be headed by a 44.100 Purpose. (11) Authorizes the Special Counsel to
Special Counsel for Immigration-Related 44.101 Definitions. reveal the identity of the injured or
Unfair Employment Practices (‘‘Special 44.102 Computation of time. charging party when necessary to carry
Counsel’’). The Special Counsel shall be 44.200 Unfair immigration-related out the purposes of this part.
appointed by the President for a term of employment practices. (b) Charging party means—
four years, by and with the advice and 44.201 [Reserved]. (1) An injured party who files a
consent of the Senate, pursuant to 44.202 Counting employees for charge with the Special Counsel;
jurisdictional purposes.
section 274B of the Immigration and (2) An individual or entity authorized
44.300 Filing a charge.
Nationality Act (INA), 8 U.S.C. 1324b. 44.301 Receipt of charge. by an injured party to file a charge with
The Immigrant and Employee Rights 44.302 Investigation. the Special Counsel that alleges that the
Section shall be part of the Civil Rights 44.303 Determination. injured party is adversely affected
Division of the Department of Justice, 44.304 Special Counsel acting on own directly by an unfair immigration-
and the Special Counsel shall report initiative. related employment practice; or
directly to the Assistant Attorney 44.305 Regional offices. (3) An officer of the Department of
General, Civil Rights Division. Authority: 8 U.S.C. 1103(a)(1), (g), 1324b. Homeland Security who files a charge
(b) In carrying out the Special with the Special Counsel that alleges
Counsel’s responsibilities under section § 44.100 Purpose. that an unfair immigration-related
274B of the INA, the Special Counsel is The purpose of this part is to employment practice has occurred or is
authorized to: implement section 274B of the occurring.
(1) Investigate charges of unfair Immigration and Nationality Act (8 (c) Citizenship status means an
immigration-related employment U.S.C. 1324b), which prohibits certain individual’s status as a U.S. citizen or
practices filed with the Immigrant and unfair immigration-related employment national, or non-U.S. citizen, including
Employee Rights Section and, when practices. the immigration status of a non-U.S.
appropriate, file complaints with § 44.101 Definitions. citizen.
respect to those practices before (d) Complaint means a written
For purposes of 8 U.S.C. 1324b and submission filed with the Office of the
specially designated administrative law
this part: Chief Administrative Hearing Officer
judges within the Office of the Chief (a) Charge means a written statement
Administrative Hearing Officer, (OCAHO) under 28 CFR part 68 by the
in any language that—
Executive Office for Immigration (1) Is made under oath or affirmation; Special Counsel or by a charging party,
Review, U.S. Department of Justice; (2) Identifies the charging party’s other than an officer of the Department
(2) Intervene in proceedings involving name, address, and telephone number; of Homeland Security, alleging one or
complaints of unfair immigration- (3) Identifies the injured party’s name, more unfair immigration-related
related employment practices that are address, and telephone number, if the employment practices under 8 U.S.C.
brought directly before such charging party is not the injured party; 1324b.
administrative law judges by parties (4) Identifies the name and address of (e) Discriminate as that term is used
other than the Special Counsel; the person or other entity against whom in 8 U.S.C. 1324b(a) means the act of
srobinson on DSK5SPTVN1PROD with RULES
(3) Conduct, on the Special Counsel’s the charge is being made; intentionally treating an individual
own initiative, investigations of unfair (5) Includes a statement sufficient to differently from other individuals
immigration-related employment describe the circumstances, place, and because of national origin or citizenship
practices and, where appropriate, file date of an alleged unfair immigration- status, regardless of the explanation for
complaints with respect to those related employment practice; the differential treatment, and regardless
practices before such administrative law (6) Indicates whether the basis of the of whether such treatment is because of
judges; alleged unfair immigration-related animus or hostility.
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00147 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/22.svg)
![91790 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
(f) The phrase ‘‘for purposes of (4) Is admitted as a refugee under 8 (i) A person or other entity, for
satisfying the requirements of section U.S.C. 1157; or purposes of satisfying the requirements
1324a(b),’’ as that phrase is used in 8 (5) Is granted asylum under 8 U.S.C. of 8 U.S.C. 1324a(b), either—
U.S.C. 1324b(a)(6), means for the 1158. (A) To request more or different
purpose of completing the employment (l) Recruitment or referral for a fee has documents than are required under
eligibility verification form designated the meaning given the terms ‘‘recruit for § 1324a(b); or
in 8 CFR 274a.2, or for the purpose of a fee’’ and ‘‘refer for a fee,’’ respectively, (B) To refuse to honor documents
making any other efforts to verify an in 8 CFR 274a.1, and includes all tendered that on their face reasonably
individual’s employment eligibility, conduct and acts during the entire appear to be genuine and to relate to the
including the use of ‘‘E-Verify’’ or any recruitment or referral process. individual; and
other electronic employment eligibility (m) Respondent means a person or (ii) To make such request or refusal
verification program. other entity who is under investigation for the purpose or with the intent of
(g) An act done ‘‘for the purpose or by the Special Counsel, as identified in discriminating against any individual in
with the intent of discriminating against the written notice required by violation of paragraph (a)(1) of this
an individual in violation of § 44.301(a) or § 44.304(a). section, regardless of whether such
[1324(a)(1)],’’ as that phrase is used in (n) Special Counsel means the Special documentary practice is a condition of
8 U.S.C. 1324b(a)(6), means an act of Counsel for Immigration-Related Unfair employment or causes economic harm
intentionally treating an individual Employment Practices appointed by the to the individual.
differently based on national origin or President under 8 U.S.C. 1324b, or a (b) Exceptions. (1) Paragraph (a)(1) of
citizenship status in violation of 8 duly authorized designee. this section shall not apply to—
U.S.C. 1324b(a)(1), regardless of the (i) A person or other entity that
explanation for the differential § 44.102 Computation of time. employs three or fewer employees;
When a time period specified in this (ii) Discrimination because of an
treatment, and regardless of whether
part ends on a day when the Federal individual’s national origin by a person
such treatment is because of animus or
Government in Washington, DC is or other entity if such discrimination is
hostility.
(h) Hiring means all conduct and acts closed (such as on weekends and covered by 42 U.S.C. 2000e–2; or
Federal holidays, or due to a closure for (iii) Discrimination because of
during the entire recruitment, selection,
all or part of a business day), the time citizenship status which—
and onboarding process undertaken to (A) Is otherwise required in order to
make an individual an employee. period shall be extended until the next
full day that the Federal Government in comply with law, regulation, or
(i) Injured party means an individual
Washington, DC is open. Executive order; or
who claims to be adversely affected (B) Is required by Federal, State, or
directly by an unfair immigration- local government contract; or
§ 44.200 Unfair immigration-related
related employment practice. employment practices. (C) The Attorney General determines
(j) The phrase ‘‘more or different to be essential for an employer to do
documents than are required under such (a)(1) General. It is an unfair
immigration-related employment business with an agency or department
section,’’ as that phrase is used in 8 of the Federal, State, or local
U.S.C. 1324b(a)(6), includes any practice under 8 U.S.C. 1324b(a)(1) for
a person or other entity to intentionally government.
limitation on an individual’s choice of (2) Notwithstanding any other
acceptable documentation to present to discriminate or to engage in a pattern or
practice of intentional discrimination provision of this part, it is not an unfair
satisfy the requirements of 8 U.S.C. immigration-related employment
1324a(b). against any individual (other than an
unauthorized alien) with respect to the practice for a person or other entity to
(k) Protected individual means an prefer to hire an individual, or to recruit
individual who— hiring, or recruitment or referral for a
fee, of the individual for employment or or refer for a fee an individual, who is
(1) Is a citizen or national of the
the discharging of the individual from a citizen or national of the United States
United States;
(2) Is an alien who is lawfully employment— over another individual who is an alien
admitted for permanent residence, other (i) Because of such individual’s if the two individuals are equally
than an alien who— national origin; or qualified.
(i) Fails to apply for naturalization (ii) In the case of a protected § 44.201 [Reserved]
within six months of the date the alien individual, as defined in § 44.101(k),
first becomes eligible (by virtue of because of such individual’s citizenship § 44.202 Counting employees for
period of lawful permanent residence) status. jurisdictional purposes.
to apply for naturalization, or, if later, (2) Intimidation or retaliation. It is an The Special Counsel will calculate the
within six months after November 6, unfair immigration-related employment number of employees referred to in
1986; or practice under 8 U.S.C. 1324b(a)(5) for § 44.200(b)(1)(i) by counting all part-
(ii) Has applied on a timely basis, but a person or other entity to intimidate, time and full-time employees employed
has not been naturalized as a citizen threaten, coerce, or retaliate against any on the date that the alleged
within two years after the date of the individual for the purpose of interfering discrimination occurred. The Special
application, unless the alien can with any right or privilege secured Counsel will use the 20 calendar week
establish that he or she is actively under 8 U.S.C. 1324b or because the requirement contained in Title VII of the
pursuing naturalization, except that individual intends to file or has filed a Civil Rights Act of 1964, 42 U.S.C.
time consumed in the Department of charge or a complaint, testified, assisted, 2000e(b), for purposes of determining
srobinson on DSK5SPTVN1PROD with RULES
Homeland Security’s processing of the or participated in any manner in an whether the exception of
application shall not be counted toward investigation, proceeding, or hearing § 44.200(b)(1)(ii) applies, and will refer
the two-year period; under that section. to the Equal Employment Opportunity
(3) Is granted the status of an alien (3) Unfair documentary practices. It is Commission charges of national origin
lawfully admitted for temporary an unfair immigration-related discrimination that the Special Counsel
residence under 8 U.S.C. 1160(a) or 8 employment practice under 8 U.S.C. determines are covered by 42 U.S.C.
U.S.C. 1255a(a)(1); 1324b(a)(6) for— 2000e–2.
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00148 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/23.svg)
![91792 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations
(d) The Special Counsel’s failure to illnesses is an ongoing obligation. The 693–1999; email meilinger.francis2@
file a complaint with respect to such duty to record an injury or illness dol.gov.
charge with OCAHO within the 120-day continues for as long as the employer Technical inquiries: Ms. Mandy
period shall not affect the right of the must keep records of the recordable Edens, Director, Directorate of Technical
Special Counsel to continue to injury or illness; the duty does not Support and Emergency Management,
investigate the charge or later to bring a expire just because the employer fails to OSHA, U.S. Department of Labor, Room
complaint before OCAHO. create the necessary records when first N–3653, 200 Constitution Avenue NW.,
(e) The Special Counsel may seek to required to do so. The amendments Washington, DC 20210; telephone (202)
intervene at any time in any proceeding consist of revisions to the titles of some 693–2270; email edens.mandy@dol.gov.
brought by a charging party before existing sections and subparts and Copies of this Federal Register
OCAHO. changes to the text of some existing notice and news releases: Electronic
provisions. The amendments add no copies of these documents are available
§ 44.304 Special Counsel acting on own new compliance obligations and do not at OSHA’s Web page at http://
initiative. www.osha.gov.
require employers to make records of
(a) The Special Counsel may, on the any injuries or illnesses for which SUPPLEMENTARY INFORMATION:
Special Counsel’s own initiative, records are not currently required to be
conduct investigations respecting unfair made. Table of Contents
immigration-related employment I. Background
The amendments in this rule are
practices when there is reason to believe A. The OSH Act and Citation of OSH Act
adopted in response to a decision of the
that a person or other entity has engaged Violations
United States Court of Appeals for the
or is engaging in such practices, and B. OSHA’s Recordkeeping Regulations and
District of Columbia Circuit. In that the Importance of Accurate Workplace
shall notify a respondent by certified
case, a majority held that the Injury and Illness Data
mail of the commencement of the
Occupational Safety and Health Act C. An Employer’s Failure to Record a
investigation.
does not permit OSHA to impose a Recordable Illness or Injury Is a Failure
(b) The Special Counsel may file a To Maintain Accurate Injury and Illness
continuing recordkeeping obligation on
complaint with OCAHO when there is Records and Is a Continuing Violation
employers. One judge filed a concurring
reasonable cause to believe that an D. The D.C. Circuit’s Decision in Volks II
opinion disagreeing with this reading of
unfair immigration-related employment E. Events Preceding This Final Rule
the statute, but finding that the text of II. Legal Authority
practice has occurred no more than 180
OSHA’s recordkeeping regulations did A. Overview
days prior to the date on which the
not impose continuing recordkeeping B. The OSH Act Authorizes the Secretary
Special Counsel opened an investigation
duties. OSHA disagrees with the To Impose a Continuing Obligation on
of that practice. Employers To Make and Maintain
majority’s reading of the law, but agrees
§ 44.305 Regional offices. that its recordkeeping regulations were Accurate Records of Work-Related
not clear with respect to the continuing Injuries and Illnesses, and Incomplete or
The Special Counsel, in accordance Otherwise Inaccurate Records Create
with regulations of the Attorney nature of employers’ recordkeeping Ongoing, Citable Conditions
General, shall establish such regional obligations. This final rule is designed 1. Section 8(c) of the Act Governs
offices as may be necessary to carry out to clarify the regulations in advance of Employers’ Recordkeeping Obligations,
the Special Counsel’s duties. possible future federal court litigation and That Provision Authorizes the
that could further develop the law on Imposition of Continuing Obligations on
Dated: December 14, 2016. the statutory issues addressed in the Employers To Make and Maintain
Loretta E. Lynch, D.C. Circuit’s decision. Accurate Records of Work-Related
Attorney General. Illnesses and Injuries
DATES: This final rule becomes effective 2. The OSH Act’s Statute of Limitations
[FR Doc. 2016–30491 Filed 12–16–16; 8:45 am]
on January 18, 2017. Collections of Does Not Define OSHA Violations or
BILLING CODE 4410–13–P Address When Violations Occur, Nor
information: There are collections of
information contained in this final rule Does the Language in Section 9(c)
Preclude Continuing Recordkeeping
DEPARTMENT OF LABOR (see Section XI, Office of Management
Violations
and Budget Review Under the 3. Incomplete or Otherwise Inaccurate
Occupational Safety and Health Paperwork Reduction Act of 1995). Records of Work-Related Illnesses and
Administration Notwithstanding the general date of Injuries Create an Ongoing Condition
applicability that applies to all other Detrimental to Full Enforcement of the
29 CFR Part 1904 requirements contained in the final rule, Act
affected parties do not have to comply 4. OSHA Is Acting Within Its Regulatory
[Docket No. OSHA–2015–0006] with the collections of information in Authority, and Consistently With the
General Case Law, in Issuing This
RIN 1218–AC84 the recordkeeping regulations (as Clarifying Rule
revised by this final rule) until the III. Summary and Explanation of the Final
Clarification of Employer’s Continuing Department of Labor publishes a Rule
Obligation To Make and Maintain an separate document in the Federal A. Description of Revisions
Accurate Record of Each Recordable Register announcing that the Office of 1. Section 1904.0—Purpose
Injury and Illness Management and Budget has approved 2. Subpart C—Making and Maintaining
them under the Paperwork Reduction Accurate Records, Recordkeeping Forms,
AGENCY: Occupational Safety and Health and Recording Criteria
Act.
srobinson on DSK5SPTVN1PROD with RULES
Administration (OSHA), Labor. 3. Paragraph (a) of § 1904.4—Basic
FOR FURTHER INFORMATION CONTACT: Requirement
ACTION: Final rule. 4. Note to Paragraph (a) of § 1904.4
Press inquiries: Mr. Frank Meilinger,
5. Paragraph (b)(3) of § 1904.29—How
SUMMARY: OSHA is amending its Director, Office of Communications, quickly must each injury or illness be
recordkeeping regulations to clarify that OSHA, U.S. Department of Labor, Room recorded?
the duty to make and maintain accurate N–3647, 200 Constitution Avenue NW., 6. Section 1904.32—Year-End Review and
records of work-related injuries and Washington, DC 20210; telephone (202) Annual Summary
VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 PO 00000 Frm 00150 Fmt 4700 Sfmt 4700 E:\FR\FM\19DER1.SGM 19DER1](https://thefederalregister.org/doc/81_FR_92011/page/25.svg)
Document Created: 2016-12-17 03:15:35
Document Modified: 2016-12-17 03:15:35
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective on January 18, 2017. | |
| Contact | Alberto Ruisanchez, Deputy Special Counsel, Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 616-5594 (voice) or (800) 237-2515 (TTY); or Office of Special Counsel for Immigration-Related Unfair Employment Practices, Civil Rights Division, 950 Pennsylvania Avenue NW., Washington, DC 20530, (202) 353-9338 (voice) or (800) 237-2515 (TTY). | |
| FR Citation | 81 FR 91768 | |
| CFR Citation | 28
CFR
0 28 CFR 44 | |
| CFR Associated | Authority Delegations (government Agencies); Government Employees; Organization and Functions (government Agencies); Privacy; Reporting and Recordkeeping Requirements; Whistleblowing; Administrative Practice and Procedure; Equal Employment Opportunity and Immigration |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR