I recently attended a seminar presented by Ronald Lee, attorney from the Office of Special Counsel (OSC) in St. Louis, Missouri. I thought the examples provided were a useful tool to illustrate why an employer who employs only US citizens should be wary of civil rights violations under Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA).
Henry’s lettuce harvest is not as large as usual–he needs fewer workers this season. He needs to make a choice between Juan and Pedro. Juan is authorized to work and is a permanent resident, or a green card holder; Pedro is also work authorized, but is a refugee with a temporary work permit. Henry ultimately decides to keep Juan because he is a green card holder.
IRCA was the first Federal law that made it illegal to knowingly employ workers who were not authorized to work in the US. After the enactment of IRCA, employers were required to confirm the identity and work eligibility of all employees hired after November 1986, not just workers who appear foreign or those who speak with an accent.
You might think that since your company only hires US workers, your company does not violate I-9. Think again! You are the President of the company with a hiring policy of employing US citizens and not employing anyone who looks foreign. As the President, you and the company are probably engaging in national origin and citizenship status discrimination by requiring all hires to be US citizens.
An aggrieved party can file a complaint with OSC. The complaint form is available at OSC complaints in English, Spanish, Vietnamese and Chinese languages.
Employers can call anonymously to ask for guidance in their hiring practices 1-800-255-8155.
Going back to our example–has Henry committed citizenship status discrimination? Pedro is a protected person under the law. A protected person is a US citizen, a green card holder, permanent resident, refugee or asylee. Henry’s firing decision cannot be based on just ‘status’, nor can Henry only hire US citizens.
Why should employers care? OSC imposes huge fines on the employer, including training and reporting mandates imposed on the employer that last between 18 months and 3 years. These are costs an employer does not need in this, or any, economy.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Copyright 2012. All rights reserved.
This blog is not intended as legal advice, only as illustrations.
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