It is no easy task for employers to navigate the complexities of immigration and civil rights laws in their employment practices. Recently, the U.S. Department of Justice’s Office of Special Counsel (OSC) provided guidance for employers to avoid violating the Immigration and Nationality Act’s (INA’s) prohibition of discrimination on the bases of citizenship or immigration status, national origin, documentation abuse, and retaliation or intimidation.
This paper is designed to deliver some of the OSC’s guidance to employers, particularly small employers, in simple, straightforward terms.
By way of background, if you employ 15 or more workers, then the U.S. Equal Employment Opportunity Commission has jurisdiction to investigate your employment practices. But, if you employ 4 to 14 workers, then OSC performs this role.
In this paper, we are going to look at OSC’s position on what constitutes immigration-related unfair labor practices and how you can ensure compliance with INA’s anti-discrimination mandate, thus avoiding an investigation of your operations by OSC. The source of information presented here may be found in a December 6, 2011, webinar, conducted by OSC.
How the OSC operates
The OSC has authority to initiate investigations of an employer’s employment practices, and it has authority to accept and investigate an injured worker’s discrimination complaint (which must be filed by the worker within 180 days of the date of the alleged discrimination).
If the OSC finds that discrimination has occurred, then it has multiple available remedies, such as requiring that the worker be hired or rehired, requiring payment of back pay, imposition of injunctive relief, and enforcement of civil monetary penalties.
There are some categories of workers for which OSC does not have authority to investigate complaints of immigration-related discrimination. These categories are: (1) legal permanent residents who have not applied for naturalization within six months of eligibility; (2) workers who have “nonimmigrant visas” such as an H-1B visa; and (3) undocumented workers.
However, OSC can investigate immigration-related discrimination complaints involving (1) United States citizens, (2) recent legal permanent residents, (3) asylees, and (4) refugees. During the December 2011, webinar, OSC sets forth instances of discrimination involving these categories of citizenship. For example, OSC states that it is illegal to utilize a policy to hire only United States citizens. On the flip side, it is also illegal to demonstrate a preference for hiring undocumented workers. And, an employer cannot demonstrate a preference for hiring nonimmigrant visa holders, such as workers in the H-1B, H-2B, or H-2A visa categories, where qualified and available United States workers are available for the job.
Proper use of the Form I-9 and its supporting documents
During the webinar, OSC stated that documentation abuse is a common form of discrimination it investigates. In particular, the Form I-9 provides a list of documents, or combination of documents, that the worker may choose to use in support of his or her authorization to work for an employer. It is discriminatory for an employer to do any of the following:
√ Restrict the documents it will accept from the Form I-9 list;
√ Require more documents than those required by the Form I-9;
√ Require different documents than those required by the Form I-9; or
√ Retaliate against a worker who files a complaint with OSC, or who cooperates with an OSC investigation.
In sum, do not depart from the requirements of the Form I-9. To the extent that a worker is allowed to choose from the list of documents on the Form I-9 to support employability, then s/he must be allowed to do so freely, without interference or restriction.
Development of a process for “No-Match” and “E-Verify”
Employers utilize the No-Match and E-Verify programs to assist them in making employment decisions. In the No-Match program, a letter is sent to an employer when an employee’s Social Security number does not match federal government records. In a similar program, E-Verify, an employer may receive a communication called a “tentative non-confirmation” (TNC) regarding a person’s authorization to work.
In either of these programs, administrative or bureaucratic mistakes can be made. And, an employer that takes an adverse action against a worker (either refusal to hire or termination of employment) based on these notices has committed an immigration-related unfair labor practice that may be investigated and prosecuted by OSC.
OSC emphasizes that in both the No-Match and the E-Verify programs, an employer must have a uniform process in place that: (1) gives the worker notice of the No-Match letter or TNC; and (2) affords the worker an opportunity to resolve the issue (i.e. a reasonable period of time to contact the appropriate authorities and correct any mistake).
In sum, it is critical for employers to have a standardized process in place to address proper utilization of the Form I-9 and to afford workers notice and an opportunity to resolve any discrepancies indicated in No-Match or TNC notices. In addition to development and implementation of sound policies and procedures, employers must also focus on a worker’s ability to meet the bona fide occupational requirements of a job. Taken together, these preventative measures will enable employers to comply with INA’s anti-discrimination mandates.
You are encouraged to view the OSC’s webinar at www.justice.gov/crt/about/osc/webinars.php.
To learn more about national origin-based discrimination, see the prior paper published by Seena Foster titled, “Limited English Proficient (LEP) Persons: Some of the Basics in Federally Funded Programs.” For more information on the importance of consistent policies and procedures, see her prior paper titled, “The Importance of ‘The Script.’” Finally, it is recommended that you take a look at her paper titled, “The Road to Nondiscrimination: Focusing on The Fundamentals.”
Seena Foster is an attorney and author of “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI-Related Laws: From Intake to Final Determination.” Her book was judged by a panel of industry experts as an award-winning Finalist in the Business Reference category of the 2011 USA Best Books competition, sponsored by USA Book News. She is also a Partner with Title VI Consulting in Alexandria, VA. You may visit her website at www.titleviconsulting.com.