Employment Practices that Could Lead to Immigration Discrimination

In order to help employers, the Office of Special Counsel (OSC) sometimes answers immigration-related questions about unfair employment practices, such as an employee presenting either invalid or fraudulent documents.

When an employee provides fraudulent documents, an employer is allowed to request the employee to present a different document. However, the employer’s concern may be that the employee could be committing a felony; and that if the employer asks for more documentation, the employee might commit an additional felony.

The employer needs to remember that the Immigration and Nationality Act (INA) disallows four types of unlawful conduct. The employer is not allowed to discriminate on the basis of:

1. citizenship or immigration status discrimination;
2. national origin discrimination
3. unfair documentary practices during the employment eligibility verification (Form 1-9) process (“document abuse”); and
4 retaliation for filing a charge or asserting rights under the anti-discrimination provision.

(source)

An employer might be in violation of USCIS policy 8 U.S.C. § 1324a, which makes employment of unauthorized aliens unlawful if the employer is aware that a document is fraudulent but accepts it. If an employer rejects a document that seems to be invalid, then the employer is allowed to ask the employee to present a different document from the Lists of Acceptable Documents from Form I-9. In order to steer clear of violating anti-discrimination laws, employers should examine documents equally for all employees.

Company Policy

Another issue pertains to whether a company policy can fire anyone that presents fraudulent documents, and regard such individuals as unqualified for rehire. It is illegal for an employer to ‘knowingly’ hire an individual who is not authorized to work in the US. The statue 8 U.S.C. § 1324a(a)(1) states, “Employers determined to have knowingly hired or continued to employ unauthorized workers…will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted.” If an employee’s document is genuine but the employer deems it to be fraudulent, then the employee can bring charges under the anti-discrimination provision, or INA. During such a case, OSC’s investigation would concentrate on the employer’s objective.

Sometimes an employer can have a company policy of regarding individuals who provide invalid documents as unqualified for rehire. An employee can file charges under the anti-discrimination policy if the employer disallows a work-authorized employee from employment, based on the individual’s previously undocumented status. This sort of “dishonest policy” would be investigated by OSC, wherein OSC would focus on whether the policy is consistently applied, without observance of citizenship status or supposed national origin. OSC will also determine if the employee was terminated based on citizenship status discrimination. However, a consistent treatment of a “dishonesty policy” would not be a violation of the anti-discrimination provision.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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