Best Practices for Verifying Employee Work Eligibility While Avoiding Discrimination Issues

By Eleanor Lipsky, Esq.
elipsky@pashmanstein.com

When hiring new employees, employers should be careful to comply with laws prohibiting the hiring of undocumented immigrants, while also ensuring that no discrimination on the basis of national origin or citizenship occurs.

The Immigration and Nationality Act (INA) is a federal law that makes it illegal for employers to knowingly hire persons who are not authorized to work in the United States.  Under the INA, an employer must check documents to confirm the identity and work eligibility of all persons they hire and complete a Form I-9, the Employment Eligibility Verification form, for every new employee, whether they are a citizen or not.  Failure to comply with the Form I-9 can result in sanctions against employers.  Further, the INA makes it unlawful for an employer to continue to employ an undocumented worker or one who loses their authorization to work at a later point.

However, the INA also prohibits discrimination when hiring and firing on the basis of one’s national origin or citizenship status.  The U.S. Department of Justice’s Office of Special Council for Immigration-Related Unfair Employment Practices offers suggestions for how an employer can avoid committing any immigration-related discrimination.[1]  For instance, an employer should allow an employee to choose which documents to present for the Form I-9, as long as it satisfies the requirements of the Form.   An employee would have a case against an employer who demanded to see a certain type of document, such as a green card, if the employee already provided appropriate documents otherwise.

Most importantly, an employer should treat all applicants the same and not make any assumptions when interviewing, offering a job, and when verifying work eligibility.  Any type of “citizens only” hiring policy or requirement that applicants have a particular immigration status is usually illegal.  The same guideline applies to a firing decision — for example, an employer cannot choose to fire or lay off someone solely because they only have a temporary work permit in favor of someone with legal permanent residency.

Keep in mind that an employee or prospective employee is protected under the INA if he or she is a U.S. citizen, national, permanent resident, temporary resident, refugee, or asylee.   Remember that U.S. citizenship or nationality belongs to any individual born of a U.S. citizen, along with all persons born in Puerto Rico, Guam, the Virgin Islands, Northern Mariana Islands, American Samoa, and Swains Island. Further, employers should recognize that refugees or those with recently granted asylum may not yet have Social Security numbers.   This could become a particular concern if an employer uses an on-line application system requiring such information because it could create an unnecessary hurdle for individuals who are in fact authorized to work in the United States, and thus should be avoided.

Employers should review their hiring and work eligibility verification policies in order to ensure compliance and avoid any potential fines and penalties imposed by the INA.

[1] See http://www.justice.gov/crt/about/osc/.

 

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