Wednesday, March 17, 2010

Some Efforts to Comply with Immigration Laws Can Open a Company to Liability for Employment Discrimination

The United States uses employers to help enforce certain immigration laws. Employers, for example, are responsible to verify the identity and employment authorization of all new hires. An employer who knowingly hires a person who is not authorized to work in the United States can face stiff penalties.

Sometimes, however, in their zeal to comply with U.S. immigration laws, employers adopt policies that could run afoul of antidiscrimination laws. For example, I recently attended a conference where the goal was to educate churches on compliance with tax and other federal laws. The presenter warned the attendees that the Department of Homeland Security was more aggressive than the IRS, and stated that at a minimum the church should have a copy of a person’s driver’s license, green card and visa. His theme was that all paperwork should be completed before any work was done.

The problem with this approach (aside from the faulyt assumption that a person with a green card has or even needs a visa) is that it opens the employer to legal liability for employment discrimination. On page 1 of the I-9 form, in the very first text box, the government warns:

It is illegal to discriminate against any individual (other than an alien not authorized to work in the United States) in hiring, discharging, or recruiting or referring for a fee because of that individual's national origin or citizenship status. It is illegal to discriminate against work eligible individuals. Employers CANNOT specify which document(s) they will accept from an employee.

Page 5 of the I-9 lists the type of documents that are acceptable. The documents are divided into 3 lists: A, B and C. List A documents show both identity and authorization to work. If a new hire shows a document on list A, the employer can require no further identification.

List B documents show identity. List C documents show authorization to work. If a new hire does not have a list A document, he or she must show both a list B and list C document.

Many of us are used to showing a driver’s license and a Social Security card when we start a new job. The driver’s license is a list B document that shows identity and a Social Security cards is a list C document that shows authorization to work. But, those are not the only acceptable documents.

For example, certain foreigners may be in the United States with the authorization to work. Such foreigners may have an employment authorization document, with or without a photograph. If the new hire has an employment authorization document without a photograph, that is a list C document and shows authorization to work. The foreigner can show the employment authorization document, and a driver’s license, which shows identity, and be able to work. In this situation, the employer cannot require the new hire to show a Social Security card. If the employer does require the new hire to show a Social Security card before permitting the person to work, the employer has engaged in a discriminatory practice and can be held liable for damages to the new employee.

If a person shows a green card (also known as the I-551), that person cannot be required to show any other form of documentation. A green card falls under list A, and demonstrates both identity and authorization to work. Similarly, if a U.S. citizen shows an unexpired U.S. passport, that is sufficient to show both identity and authorization to work. Moreover, if a new hire shows an employment authorization document with a photograph, that document alone is sufficient to permit the new hire to work. In these situations, the employer cannot require further identification. If the employer does, the employer has engaged in a discriminatory practice and can be held liable.

In adopting policies to ensure an employee’s ability to work in the United States, the employer should be mindful of the potential employment discrimination liability. Reading Form I-9 thoroughly, and understanding it is a good first step in balancing the duty to comply with the duty to avoid discriminatory practices.

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