hr best practices you must use to avoid immigration discrimination claims
TRANSCRIPT
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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