Inaccuracies in your hiring and screening procedures could lead to you unfairly denying someone a job. This is of particular concern when trying to avoid claims of national origin discrimination while still trying to stay in compliance with the Immigration Reform and Control Act of 1986 (IRCA), which bars employers from hiring individuals, including illegal aliens, who are not legally entitled to work in the United States. How do you stay legally compliant without unfairly discriminating against anyone?
Best Employment Practices to Avoid Discrimination Claims
The antidiscrimination provisions of IRCA were adopted based on fears that employers would have a tendency to discriminate in employment practices rather than run the risk of hiring an illegal alien. Despite the fine points of IRCA and Title VII, employers should be particularly cautious about any employment practice that could be interpreted as discriminating against job applicants or employees on the basis of their nationality or citizenship.
In a recent BLR webinar, John Nahajzer and Jim Alexander confirmed this risk: "You’re being deputized by the government in the I-9 context … in trying to verify the work authorization and identify of your employees, but then if you go too far you run the risk of being sued by one of these individuals – and having the government come after you as well." To protect against discrimination charges, employers should:
- Allow employees to choose which work eligibility and identity documents to use, as long as they are on the acceptable list.
- Accept documents that appear to be genuine (establishing the authenticity of a document is not an employer’s responsibility).
- Not ask for identity and work authorization documents until after an individual is hired unless all applicants are treated in this way. Saving time by checking in advance about individuals who appear foreign is discrimination.
- Not give a preference based on individuals’ residence status (i.e., a legal permanent resident versus an asylum seeker with a temporary work permit).
- Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing. This includes giving out the same job information over the telephone to all callers, and using the same application form for all applicants.
- Avoid "citizen only" or "permanent resident only" hiring policies. In most cases, it is illegal to require job applicants to have a particular immigration status.
- Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of employees.
- Keep the completed I-9 form on file for at least 3 years from the date of employment or for 1 year after the employee leaves the job, whichever is later.
- Make the forms available to government inspectors upon request.
- On the I-9 form, verify that documents establishing identity and work authorization for all new employees, U.S. citizens and noncitizens alike, have been inspected.
For more information on avoiding discrimination while verifying employment eligibility, order the webinar recording of "From I-9 to E-Verify: How to Master HR’s Newest Immigration Challenges." To register for a future webinar, visit http://catalog.blr.com/audio.
Attorneys John Nahajzer and Jim Alexander are the managing shareholders of Maggio & Kattar, P.C., the largest boutique immigration law firm in Washington, D.C. Each has unique expertise in counseling clients on corporate business immigration issues, including corporate compliance, E-Verify, and Social Security No-Match.