Lessons from Microsoft’s Recent Employment-Related Settlement with the DOJ

In early December 2021, the Department of Justice settled with Microsoft resolving an immigration-related discrimination claim. The claim arose from Microsoft’s practices during its hiring process, which required applicants to provide unnecessary immigration documents to prove they could work for the company or to prove that they were still permitted to work in the US.

The Issues with Microsoft’s Hiring Processes

The Immigration and Nationality Act (INA) requires employers to verify that a worker has permission to work in the US. At the same time, the Act prohibits employers from requesting documents when not required or from requesting specific types of documentation. 

Microsoft’s issues arose because they requested specific documentation from job applicants to prove they could legally work for Microsoft without its sponsorship for work visas. In one applicant’s case, Microsoft requested that he provide a copy of his permanent residence card. Further investigations revealed that at least six lawful permanent residents had been asked for specific documentation. Additionally, permanent residents were routinely sent emails asking for documents to confirm their continued work authorization despite having previously demonstrated their permanent work authorization. 

The Settlement 

Microsoft agreed to adjust its processes so it no longer requests workers to reverify their authorization to work in the US and it allows workers to select the documentation they wish to provide to prove their lawful status as a worker in the US. 

Microsoft also agreed to pay a small administrative penalty and to train the employees responsible for verifying the documents of lawful workers. Finally, Microsoft will be subject to monitoring and reporting requirements. 

Lessons from the Microsoft Settlement with the DOJ

To avoid issues arising from breaches of the Immigration and Nationality Act requirements, the Immigrant and Employee Rights (IER) Section of the US Department of Justice recommends: 

• Do not attempt to limit or restrict the documents an employee can provide when completing the Form I-9. Any documentation that complies with the requirements for the Lists of Acceptable Documents is valid.
• Generally, you should not ask an employee who marks U.S. citizen to present a certificate of naturalization or US passport as it may be unlawful discrimination. 
• Calling the IER or USCIS before rejecting a valid document because it is either unfamiliar, an older version, or it appears expired. Some employees may qualify for an automatic extension of their Employment Authorization Document, which means that while their document appears expired, it may still be valid. Rejecting a valid document on the grounds of an upcoming expiration date may violate federal law. 
• Employers should know when circumstances require reverification of an employee’s documents, and when they do not. Typically, this would only be required if an employee’s temporary work authorization document expires or in some cases when an employee is rehired. 

To confirm whether your hiring processes are compliant, reach out. Our employment attorneys are here to help!

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