Diversity & Inclusion

Walking the line between hiring only authorized workers and violating the discrimination laws

by Elaine Young

Here are two situations in which you must avoid discrimination while fulfilling your obligation to hire only authorized workers.  Form and pen - 2

Situation #1

ABC Resort is a beautiful, large new resort in the Utah mountains. Some of its managers heard about Immigration and Customs Enforcement (ICE) raids a few years ago at other resorts and wanted to ensure they don’t hire undocumented workers. The HR manager instituted a policy of hiring only U.S. citizens.

When implementing the policy, HR staff didn’t advertise that the resort hires only U.S. citizens, but they were trained to detect and reject anyone who sounds “foreign” during the interview process. There was one exception: The resort continued to sponsor visas for a very important group of seasonal European ski instructors it hired through the H-2B visa program. The H-2B visa program is a source of so many great ski instructors who are able to live on the premises and are always available to work, so ABC Resort decided not to go through the hassle of hiring the American ski instructors who applied for jobs.

ABC Resort hasn’t hired any undocumented workers, so should it be concerned about violating any immigration laws? Yes. The U.S. Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) works to ensure that employers don’t discriminate against employment-authorized individuals based on their citizenship, immigration status, or national origin in violation of the antidiscrimination provision of the Immigration and Nationality Act (INA). Following an investigation, employers found to be engaging in discriminatory activity may be assessed civil penalties and damages for back pay.

In a recent OSC investigation with similar facts, an employer agreed to pay $18,550 in back pay to a non-U.S. citizen and $3,200 in civil penalties after the employer instituted a policy of refusing to hire anyone it believed wasn’t a U.S. citizen, which led its HR personnel to reject all applicants who sounded or appeared foreign. In another OSC case, an employer agreed to pay $59,617 in back pay to six lawful permanent resident applicants and $2,250 in civil penalties after showing a preference for hiring H-2B temporary visa holders over U.S. citizens and lawful permanent residents.

Situation #2

Acme Manufacturing builds expensive widgets in its Utah facilities. Because its products are so expensive, Acme conducts thorough background checks on all of its workers. It hires workers who are foreign nationals or who have lived abroad.

Acme recently interviewed a lawful permanent resident worker (with a U.S. green card) who lived outside the United States for the last five years. Because the applicant didn’t have a recent U.S. federal or state security history, Acme required him to pay an extra $350 so it could conduct an international background check. Also, Acme’s legal counsel cautioned that the worker still may not be eligible for a green card because he lived outside the United States for so long.

Is there a problem with charging a job applicant more for a foreign background check? Yes—it constitutes national origin discrimination. How about trying to ensure that a worker who says he has a green card really does so you can be sure he’s still eligible to work in the United States? That creates another problem. Remember, employees can present any document they choose during the I-9 process as long as it’s on the list of approved documents. So if a new employee provides a state driver’s license and an unrestricted Social Security card, he isn’t required to present a green card (i.e., a permanent resident card) to satisfy the List A requirement, even if he indicated he is a permanent resident in Section 1 of the I-9.

Bottom line

Employers are not expected to be immigration police. Use good legal counsel, and be careful not to overthink immigration rules. The I-9 process exists to give employers an approved method of ensuring their employees are authorized to work in the United States.

Elaine Young is an attorney with Kirton McConkie, practicing in the firm’s Salt Lake City, Utah, office. She may be contacted at eyoung@kmclaw.com


Need to learn more? Questions continue to pour in on what’s changed—and what’s stayed the same—with the new “Smart” Form I-9 in editable PDF form. “Smarter” doesn’t always mean simpler. There’s still plenty of guesswork involved for employers, so don’t gamble on getting compliance right when it comes to completing—and correcting—your I-9 forms.  Listen to New ‘Smart’ Form I-9 Compliance: Understanding Changes to the Employment Verification and Recordkeeping Process on demand hosted by Elaine Young. For more information, click here.

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