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Steps to Prevent Immigration-Related Discrimination in Hiring
When Congress created the I-9 employment eligibility verification requirements in 1986, there was concern that employer scrutiny would lead to discrimination against people who looked or sounded foreign-born. Thus, as a counterweight to the potential problems associated with employers checking new employees' documents, Congress wrote laws to protect workers from discrimination during the I-9 process based on national origin and citizenship status. These laws are designed to punish employers for what are described in the Immigration and Nationality Act as "unfair immigration-related employment practices." The Office of Special Counsel (OSC) of the U.S. Department of Justice in Washington, D.C., is the agency that enforces these laws.
With the U.S. Immigration and Customs Enforcement (ICE) scrutinizing employers on I-9 and immigration compliance at an unprecedented rate, employers need to be careful that they do not impose a higher or different set of compliance standards on immigrants or workers they perceive to be foreign-born. These legal protections and OSC's jurisdiction do not extend to protecting illegal aliens or those who use false documents. However, these laws provide citizens, lawful permanent residents, temporary permanent residents, refugees and asylees with legal protections that can be investigated and prosecuted by OSC.
If an employer is found to have committed an unfair immigration-related employment practice, OSC has the authority to take the matter before an administrative law judge and seek such remedies as reinstatement, back pay, and corrective measures to ensure the employer's compliance with federal law. OSC has the authority both to request and subpoena documents pursuant to charges filed by workers alleging a violation and to initiate investigations on its own accord.
An unfair immigration-related employment practice may occur in a variety of scenarios:
- The employer has a policy of requiring employees to be U.S. citizens, or showing a preference for citizens, when citizenship is not required by law, executive order or government contract.
- The employer imposes a different or higher set of I-9 employment eligibility verification procedures on non-citizens as compared to U.S. citizens.
- An employer obligates all non-citizens to present a Permanent Resident Card or other specific document, or otherwise refuses to permit immigrants to choose which documents they want to present to complete the Form I-9, Employment Eligibility Verification.
- An employer requires more documents from people who look or sound foreign than it requires from new employees who appear to be citizens.
- An employer "screens" job applicants by requesting employment authorization documents in advance of job offers.
- An employer refuses to hire an applicant because he has an immigration document (showing, for example, that he is a lawful permanent resident, asylee or refugee, all of which are classifications of non-citizens who have a full-fledged right to work and live permanently in the United States).
- An employer rejects an applicant because his valid work authorization document has an expiration date.
- An employer refuses to employ or continue the employment of a foreign national who has authorization to work pursuant to Temporary Protected Status (TPS) as defined by federal law and corresponding U.S. Citizenship and Immigration Services (USCIS) regulations.
- An employer has a policy of requiring and reviewing immigration status documents even though the employee has presented other acceptable documents to complete the I-9.
- An employer threatens, coerces or otherwise retaliates against an employee who has filed a charge with the OSC or is otherwise participating in an OSC investigation.
All of these different circumstances might lead to a finding of an unfair immigration-related employment practice. Some narrow exceptions exist to these rules for employers who have positions that require U.S. citizenship, such as jobs with government agencies or with employers in the private sector, based on national security requirements.
Employers can prevent immigration-related discrimination by ensuring that all new hires are treated in a uniform fashion when I-9s are completed. Further suggestions to prevent any liability or charges in this area include the following:
1. Training for On-Campus Recruiters, Interviewers and Hiring Managers
Make sure that all company representatives who participate in on-campus and job fair recruiting are trained in what can and cannot be asked of job applicants. Employers can legally ask whether individuals are legally authorized to work, or whether they will in the future require employer sponsorship to maintain a right to work. But those questions must be asked uniformly and in an appropriate manner, and cannot be used as a screening mechanism used only with those who "look" foreign. A recruiter's or hiring manager's misunderstanding of the rules could trigger a costly claim against the company.
2. Review of Applications, Job Postings and Offer Letters
The ultimate goal is to treat all potential job applicants uniformly, citizens and non-citizens alike. Employers should consider what questions, restrictions and other information they have on job application forms, in job postings, and in employment offer letters. Is the language among these documents consistent? Is the correct information being solicited? Should the language be further updated or revised to prevent a charge of immigration-related discrimination?
3. Keep I-9 Completion in the Hands of Those With Training
Many charges filed with the OSC are the result of employer mistakes. Too often, the company representatives who are responsible for completing I-9s are not given appropriate training. That lack of knowledge, or the reliance on intuition, often leads to mistakes and charges of discriminatory treatment. The most effective step an employer can take to minimize the risk of an immigration-related discrimination charge is to keep the I-9 process entirely in the hands of human resource or other administrative personnel who receive regular training to do the job correctly.
4. Quality Control Check Before any Offer Is Rescinded or Employment Is Terminated for an I-9 or Immigration-Related Issue
There are always nuances and new twists in the law when it comes to immigration documents and I-9 compliance. Even seasoned HR representatives will occasionally confront a unique set of facts. A company can further reduce potential liability for immigration-related discrimination by establishing a practice of always double-checking the law before rescinding a job offer or terminating an employee because of an issue related to the I-9 or an immigration document. Taking the time for this quality control check can often lead to an understanding of new developments in the law, an exception to normal rules, or a suggestion that might enable the company and the employee to find another solution that will allow for I-9 compliance and the person's continued employment. The OSC has a history of receiving complaints from workers whose employment was terminated due to a hasty employer judgment about the person's eligibility to work.
5. Always Permit the New Hire to Choose the Document or Documents He Wishes to Present to Confirm Identity and Employment Eligibility
All new employees have the legal right to choose which documents they wish to present to confirm identity and employment eligibility on the I-9 employment eligibility verification form. That is true for citizens and non-citizens alike. The rules do not change even if the new employee has an employment authorization document. The I-9 form and instructions provide a very simple-to-follow list of which documents are acceptable to prove identity and employment eligibility. So long as the new hire presents a document that appears to be genuine and is on the list of acceptable documents, the law gives complete discretion to the worker about what to present; the employer cannot mandate which document the employee chooses. The employer must, of course, reject a document that does not look genuine, as it must reject any documents that fall outside the list. But beyond that, the employer must go with the documents chosen by the employee.
6. Do Not Impose a Different Set of Rules or Higher Standard of Review for Someone You Believe to be Foreign-Born
In this era of greater worksite enforcement, employers have valid reasons to review documents more closely. Carelessness in the I-9 process can expose the company to administrative problems and potential liability. But the level of an employer's scrutiny should not rise only when an immigrant or person with a foreign appearance is being hired. For example, if the company is required or decides to voluntarily enroll in the federal government's "E-Verify" electronic employment eligibility verification program, those added employment verification steps must be applied to all workers at any location where the procedures are being adopted. Likewise, employers can commit an unfair immigration-related violation if they impose a stricter set of employment verification steps on production employees, but disregard those procedures for managers and executive staff.
7. Questioning a Document Must be Based on Objective Criteria, Not a "Gut" Reaction
One of the best ways to test whether an employer is acting within this set of laws is to have the employer identify the specific and objective reasons why a document is being challenged or an employee is not being permitted to continue working on the job. If the employer representative can only provide non-specific "gut" reactions, or simply "senses something wrong," it is quite likely there is not a sufficient legal basis to reject the document or terminate the person's employment. Many "gut" reactions are ultimately tied to an intuitive response to the employee's appearance, accent or other indications of being foreign-born.
8. Know the Non-Citizen Immigration Categories That Authorize a Full Right to Work
In late 2007, the federal government issued an updated Form I-9, Employment Eligibility Verification, which is in use nationwide for all employees hired on or after December 26, 2007. With the new I-9, USCIS also issued a new Handbook for Employers. It had been many years since this handbook was updated. In response to questions over the last two decades, USCIS included more detailed information on non-citizen immigration classifications that authorize a carte blanche right to work in the United States. Through this and other resources now easily accessible on the Internet, employers should understand and be prepared for the types of documents that legal non-citizens present in the I-9 process. This information is especially important in light of the U.S.'s increasingly diverse workforce, and given the high level of immigration in recent years. As part of its regular I-9 training, company representatives responsible for I-9 compliance should become well-versed in the documents that may be presented by lawful permanent residents, temporary residents, asylees, refugees, those with TPS status, and foreign workers who have temporary visa status (such as H-1B, L-1, J-1, and Optional Practical Training in connection with F-1 foreign student status).
9. Stay Up-to-Date on Immigration Compliance
Worksite enforcement will continue to be more prevalent in 2008 compared to what employers experienced in the 1990s. The dynamics in the American workplace (such as increased diversity, continuing growth in the level of immigration, and perpetual concerns about fraudulent documents) make it imperative that employers keep I-9 and immigration compliance as high priorities. This mandate should be part of every company's annual training and continuing education requirements for recruiters, hiring managers, HR professionals, and others who are involved in any aspect of the I-9 or immigration compliance process.
10. Expect to Encounter Unique Scenarios, and Have a Plan in Place to Seek Help
Few areas in employment law compliance experience such frequent changes in law, regulations, forms, procedures and other requirements as immigration. There have been dramatic changes and increased complexity since the I-9 form was introduced in 1986. The number of immigration documents issued by foreign nationals to confirm legal status continues to change. Even for seasoned I-9 specialists, there are always unique situations. This truth is demonstrated on an almost annual basis by the unpredictability of how Congress deals with extensions of TPS authorization for a variety of countries that are experiencing warfare, natural disasters and other major problems. The manner in which an employer is obligated to address I-9 re-verifications for TPS holders is different depending on the nationality of the person involved. Immigration compliance is also becoming more complex due to the increasing number of state immigration laws, which changes the entire I-9 and employment verification process in certain states (most notably in Colorado). Employers should expect change, and have contingency plans in place so that HR personnel responsible for I-9 compliance have an agreed-upon plan to address unique scenarios and complex questions quickly and properly. This plan may involve access to experienced in-house personnel or legal advisors, or outside legal counsel. But there must be a "safety net" in place to prevent charges of unfair immigration-related employment practices.
11. Assign I-9 Compliance as an Area for Which Managers Will Be Evaluated
A company can ensure a higher rate of I-9 compliance by assigning management responsibility for the function. Assigning managerial responsibility can also help reduce liability for I-9 deficiencies. It can be used as a way to measure a facility's performance in the same fashion that companies expect compliance in other areas of risk management (e.g., OSHA compliance and workers' compensation). This responsibility includes the expectation that those managing the function will understand the steps necessary to balance I-9 worksite enforcement concerns with methods to prevent immigration-related discrimination in hiring.