The Immigration Reform and Control Act of 1986 (IRCA) introduced employer sanctions for ‘knowingly’ hiring undocumented workers. IRCA also initiated the Form I-9 employment eligibility verification process, and established the Office of Special Counsel (OSC) to administer anti-discrimination provisions. Since the advent of OSC, immigrants and “authorized” workers have had to regularly prove their work status.
Given this legal backdrop, the question for employers is whether it is still possible to discriminate against job seekers. In other words, is preferential hiring based on citizenship status legal? It is only legal if the individual is not work-authorized; if it is required by law, regulation, executive order or government contract; or if the individual requires sponsorship.
On a rainy day, a farmer’s lettuce harvest was less abundant than usual. The farmer, Harry, needed fewer farm workers than last season. He had to make a decision between keeping Hector or Jose. He decided to keep Hector because he was a legal permanent resident, and decided against Jose because he was an asylee with a temporary work permit. Did Harry commit citizenship status discrimination?
Yes, Harry committed citizenship status discrimination because the asylee is a “protected person” under the Immigration and Nationality Act (INA). A protected individual is a US citizen, US national, permanent resident, temporary resident, refugee or asylee. Harry could not fire Jose based on the fact that he was an asylee with a temporary work permit.
OSC defines national origin discrimination as treating employees differently based on country of origin and/or ancestry, accent, or appearing to be from a certain country. So if Harry (employer) had at least 6 employees under Missouri law, or 4-14 employees under federal law, he could not discriminate against an applicant based on the fact that he looked foreign.
What are some examples of national origin discrimination? Preferring people from a certain country; only hiring “native English speakers”; and not hiring someone with an accent.
CEO Jane had heard of the penalties for hiring unauthorized workers. Wanting to keep her company intact, she issued an order telling HR not to hire anyone who looked like they had crossed the border illegally. Did she commit national origin discrimination? Yes, she did. All hirees are required to be verified the same way regardless of whether they are immigrants or members of a foreign community.
Section 1 of Form I-9 needs to be completed after the employee takes the job, and by the first paid work day. Aliens who are authorized to work are refugees and asylees, who work with no expiry date. These employees can write N/A if he/she has no expiry date. Employees are not obligated to present documents confirming status.
Section 2 of Form I-9 needs to be completed within 3 business days of the first paid day. Employees must submit documents from List A or List B + C.
Some common problems often arise when filling out Section 2. Employers frequently ask non-US citizen workers to provide List A documents but do not ask the same of US citizen workers, while allowing US citizen workers to submit any document they choose. Employers also request non-US citizen workers to present documents from Lists A, B and C, which is against I-9 regulations. The Handbook for Employers and USCIS‘s I-9 website commonly go unreviewed by employers. Because of this, employers often don’t accept certain documents, such as receipts, from non-US citizen workers.
Employers do not need to update or reverify US citizens, permanent resident cards holders (I-551), and List B documents.
Work-authorized individuals are protected from discrimination, while undocumented individuals are not. A few possible outcomes exist if an employer faces discrimination charges by OSC. Charges can be dismissed if OSC cannot find substantial cause; proof that the employer engaged in discrimination; or if OSC has no jurisdiction. If OSC decides that the employer is at fault, then OSC attempts to arrange a settlement; otherwise it will prosecute. If the settlement is rejected, then OSC reserves the right to file a complaint against the employer. The employee may also file his or her own complaint against the employer.
Part of the settlement that OSC may enter into with the employer could include requiring the employer to rehire the individual(s); reimbursement of back pay; providing injunctive relief to the complainant; requiring the employee to provide training to HR personnel; requiring monitoring of these activities; and reporting back to OSC about compliance with the steps required by settlement. The settlement could also mandate civil penalties.
Civil Penalties for citizenship status discrimination, national origin discrimination and retaliation can be high. Penalties for first-time offenders range from $375-$3,200; second-time offenders: $3,200-$6,500, and third-time offenders: $4,300-$16,000. Penalties for document abuse range from $110-$1,100.
A TNC, or a tentative non-confirmation is when there is a tentative non-match between the applicant’s name and Social Security Number (SSN). If a TNC is issued, the employee should be allowed to contact the federal agency and remedy the situation. An employer has eight federal days to contact Social Security, and Social Security can continue the matter for 120 days. In the meantime, the employer cannot terminate; suspend; delay the employee’s job; persuade the employee to quit; decrease the employee’s hours; deny pay; asking for further documentation; or delay employing the applicant. But if the TNC becomes a “final non-confirmation”, then the employer is within rights to fire the employee.
E-Verify cannot be used as an applicant self-check or prescreening by the employer.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Copyright 2012. All rights reserved.
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