HR Best Practices You Must Use to Avoid Immigration Discrimination Claims

HR Best Practices You Must Use

TO AVOID IMMIGRATION DISCRIMINATION CLAIMS AND PENALTIES

By Ann Massey Badmus 2015

Legal Landscape

Prohibited Conduct

Penalties & Recent Cases

Best Practices

Agenda

Department of Homeland SecurityU.S. Citizenship & Immigration Services

U.S. Citizenship & Immigration Services (USCIS)

www.uscis.gov Immigration and citizenship

application oversight

U.S. Customs and Border Protection (CBP) www.cbp.gov

Border patrol and international travel facilitation

Department of Homeland SecurityU.S. Customs and Border Protection

Department of Homeland SecurityImmigration and Customs Enforcement

Investigates employers for compliance with

employment verification (I-9 Form)rules and removes

undocumented aliens www.ice.gov

U.S. Department of Labor

Investigates employer verification compliance, visa compliance, violation of worker rules

www.dol.gov

U.S. Department of JusticeOffice of Special Counsel (OSC)

Investigates and prosecutes charges of immigration-related unfair employment

practices www.usdoj.gov/crt/osc

Citizenship or Immigration Status Discrimination

National Origin Discrimination

Document Abuse

Retaliation or Intimidation

Prohibited Conduct

Prohibits different treatment because of citizenship or immigration status

Protects US citizens, recent permanent residents, temporary residents, asylees or refugees only

Citizenship/Immigration Status Discrimination

Prohibits different treatment because of place of birth, country of origin, ancestry, native language, accent, or looks or sounds “foreign”

Protects ALL work authorized individuals

National Origin Discrimination

Prohibits request for more or different documents than required or rejection of genuine-looking documents

Prohibits requirement of specific documents based upon citizenship status or national origin

Protects ALL work authorized individuals

Document Abuse

Common Mistakes

Your supervisor catches you before you start interviewing applicants for a job. She says, “Find out if those two near the door have their ‘green cards’ before you waste your time.

Did you discriminate in hiring?

Common Mistakes

The managing partner of your firm issues a memo stating, “Please be careful when hiring people who look like they crossed the border illegally.”

Has your firm committed national origin discrimination?

Have you committed citizenship status discrimination?

Common Mistakes

You find two equally qualified candidates to fill one position. In deciding between the two, you decide on one because he is a permanent resident and the other, an asylee, only has a temporary work permit (EAD).

Are you in compliance with the IRCA?

Common Mistakes

You implement an employee referral program. Unofficially, you tell employees that you prefer they only refer applicants who are U.S. citizens.

Does Angela have a case against you?

Common Mistakes

You hire Angela Lopez and are surprised when she hands you a state-issued driver’s license and an unrestricted Social Security card for her I-9 form. You say, “I must see a card issued by the USCIS.”

$100 to $16000 depending upon the violation

Back pay (no more than 2 years before claim was filed)Hire or re-hire

Personnel Training

Attorney Fees

Penalties for Anti-Discrimination Violations

June 25, 2015Violation: National retailer, Abercrombie & Fitch, required the individual to present a green card and refused to accept valid I-551 stamp in passport

Settlement: $3,661.14 in back pay to the complainant and a civil penalty to the United States; establish a back pay fund of $153, 932.00 to compensate other individuals who may have been harmed; and be subject to monitoring of its employment eligibility verification practices for two years.

Recent OSC Settlements

June 19, 2015 Violation: Accountemps, a division of Robert Half International Inc., refused to refer an applicant for a federal government contract position because, as a naturalized citizen, she was not born in the United States.

Settlement: Accountemps will continue to refer the applicant for positions for which she is qualified, pay a $2,500 civil penalty, train its staff on the anti-discrimination provision of the INA, and be subject to a one-year monitoring period.

Recent OSC Settlements

May 27, 2015Violation: Luis Esparza Services, Inc. required non-citizens to produce DHS-issued List A documents in addition to non-DHS issued List B and C documents to establish identity and work authority in violation of the anti-discrimination provision of the INA.

Settlement: Under the terms of the settlement agreement, the Respondent will pay $320,000 in civil penalties, provide back pay to an economic victim, comply with specific injunctive and corrective action requirements, and be subject to monitoring for a three year period.

Recent OSC Settlements

Anti-Discrimination Best PracticesRecruitment & Hiring Best Practices

•No “citizens only” hiring policy unless required by law

•Avoid discriminatory language in job postings and do not pre-screen using I-9 form

•No language requirements unless necessary to perform job

•Educate hiring personnel about equal employment opportunity laws including anti-discrimination immigration rules

Anti-Discrimination Best PracticesForm I-9 Process Best Practices

Section 1 (Employee) •Do not ask for proof of

immigration or citizenship status•Do not require

expiration date•Do not require social

security number, unless using E-Verify

Anti-Discrimination Best PracticesI-9 Process Best Practices (cont.)

Section 2 (Employer) • Do not require any specific

document• Do not reject unfamiliar or

older version documents• Do not reject documents

because of upcoming expiration date, e.g. EAD or green card

Anti-Discrimination Best PracticesI-9 Process Best Practices (cont.)

Section 3 (Reverification) • Do not re-verify U.S.

citizens or permanent residents (“green card”) • Allow workers to present

any compliant document• Do not re-verify identity

documents that have expired

Anti-Discrimination Best PracticesE-Verify Best PracticesUse consistently regardless of citizenship or immigration statusDo not use E-Verify before hireDo not request specific or additional documentsDo not make assumptions based upon tentative non-confirmation (TNC)

Anti-Discrimination Best PracticesWorksite Enforcement Audit Best Practices

Provide all workers with reasonable amount of time to correct discrepanciesInform employees about auditDon’t selectively verify certain employees because of audit noticeRequire more evidence than audit requires

Facts of each case are different. The general information provided here should not be relied and is not legal advice.

Consult with an experienced attorney to get the right advice for your specific circumstances.

What to Do Next?

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