Published on July 29, 2015
1. HR Best Practices You Must Use TO AVOID IMMIGRATION DISCRIMINATION CLAIMS AND PENALTIES By Ann Massey Badmus 2015
2. Legal Landscape Prohibited Conduct Penalties & Recent Cases Best Practices Agenda
3. Department of Homeland Security U.S. Citizenship & Immigration Services U.S. Citizenship & Immigration Services (USCIS) www.uscis.gov Immigration and citizenship application oversight
4. U.S. Customs and Border Protection (CBP) www.cbp.gov Border patrol and international travel facilitation Department of Homeland Security U.S. Customs and Border Protection
5. Department of Homeland Security Immigration and Customs Enforcement Investigates employers for compliance with employment verification (I-9 Form)rules and removes undocumented aliens www.ice.gov
6. U.S. Department of Labor Investigates employer verification compliance, visa compliance, violation of worker rules www.dol.gov
7. U.S. Department of Justice Office of Special Counsel (OSC) Investigates and prosecutes charges of immigration-related unfair employment practices www.usdoj.gov/crt/osc
8. Citizenship or Immigration Status Discrimination National Origin Discrimination Document Abuse Retaliation or Intimidation Prohibited Conduct
9. 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
10. 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
11. 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
12. 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?
13. 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?
14. 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).
15. 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.
16. 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.”
17. $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
18. June 25, 2015 Violation: 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
19. 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
20. May 27, 2015 Violation: 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
21. Anti-Discrimination Best Practices Recruitment & 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
22. Anti-Discrimination Best Practices Form 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
23. Anti-Discrimination Best Practices I-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
24. Anti-Discrimination Best Practices I-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
25. Anti-Discrimination Best Practices E-Verify Best Practices Use consistently regardless of citizenship or immigration status Do not use E-Verify before hire Do not request specific or additional documents Do not make assumptions based upon tentative non- confirmation (TNC)
26. Anti-Discrimination Best Practices Worksite Enforcement Audit Best Practices Provide all workers with reasonable amount of time to correct discrepancies Inform employees about audit Don’t selectively verify certain employees because of audit notice Require more evidence than audit requires
27. 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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