Hiring question do’s and don’ts in the Trump era

24 Jul 18

UNITED STATES

HR managers and staff may be uncertain of which type of immigration-related questions they are legally permitted to ask job candidates in light of recent policy priorities set by the Trump administration supporting U.S. workers.

In furtherance of Trump’s “Buy American, Hire American” Executive Order, government agencies have launched various initiatives aimed at greater enforcement against employers who discriminate against American workers. In May, the Department of Justice (DOJ) and U.S. Citizenship and Immigration Services (USCIS) entered into a formal memorandum of understanding to share information with each other about employers. This memorandum is for the purpose of investigating and prosecuting companies that use employment-based visa programs, such as the H-1B category and others, to discriminate against U.S. workers in favor of foreign workers. USCIS has also stepped up on-site employer visits and opened a hotline for individuals to report H-1B and H-2B visa fraud.

The policies encourage companies to hire American workers and remind them not to discriminate against U.S. workers. However, employers must also be mindful of discriminating against job candidates who are foreign nationals. While it is against the law to knowingly hire someone who is not authorized to work in the U.S., it is also unlawful to discriminate on the basis of citizenship, national origin, race or religion. Companies may be sued or face Equal Employment Opportunity Commission (EEOC) complaints if they ask questions that violate protected categories. The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment or referral for a fee, on the basis of an individual’s citizenship or immigration status. The law prohibits employers from hiring only U.S. citizens or lawful permanent residents unless required to do so by law, regulation or government contract. Furthermore, the DOJ Immigrant and Employee Rights Section (IER, formerly the Office of Special Counsel) cautions against asking detailed questions about job applicants’ specific immigration or citizenship status, since it could deter protected individuals (U.S. citizens, certain lawful permanent residents, temporary residents, refugees, and asylees) from applying. Additionally, such questions may lead individuals who are rejected for a job to allege that they were not hired because of their national origin.

Below are some common do’s and don’ts in the hiring process:

  • During a job interview, employers are not permitted to ask whether a job candidate is a U.S. citizen, their place of birth, nationality, or other questions to determine their citizenship, nationality, ethnicity or religion. An interviewer should not ask about an individual’s visa status or for proof of work authorization, but may state that employment with the company is subject to verification of an individual’s eligibility to work in the U.S. and ask whether, if hired, the individual will be able to provide evidence that he or she is legally authorized to work in the U.S.
  • After a job offer is made, an employer may inquire about the individual’s visa status and indicate that the job offer is contingent upon demonstrating work authorization. Employers may also ask whether the individual will require the employer to sponsor him or her for an immigration benefit, such as an H-1B or other type of visa. A job offer that is contingent upon demonstrating work authorization may be rescinded if the individual is later unable to provide proof of employment authorization. An employer is not required to sponsor an employee who needs a visa, and individuals cannot bring a claim of discrimination based on being passed over for a position because they required immigration sponsorship.
  • After the employee accepts an offer, employers are then required to ask for proof of U.S. citizenship or legal status and work authorization during the I-9 employment eligibility verification process. Employers cannot ask for documents other than those designated on the Form I-9 List of Acceptable Documents or reject documents deemed acceptable by the Form I-9 List of Acceptable Documents. The employer also cannot dictate which documents or combination of documents an employee chooses to present from the designated choices on the Form I-9 List of Acceptable Documents. An employer cannot refuse to hire an individual who is lawfully authorized to work because his or her visa is due to expire in the future.
  • Additionally, companies must comply with state laws that may be more restrictive than federal law. On July 1, amendments to California law took effect that expand and strengthen protections for employees and job applicants against national origin discrimination. The changes to the state Fair Employment and Housing Act include redefining national origin discrimination to include language restriction (such as English-only) policies, discrimination based on English proficiency, an employee or applicant’s accent, recruitment or assignment of a position on the basis of national origin, and inquiring into an applicant’s or an employee’s immigration status unless required under federal law. The amendments also broaden the definition of “national origin” to include actual or perceived cultural, linguistic or physical characteristics associated with a national origin group, membership in a group that promotes interests of a national origin group, participation in religious institutions used by persons of a national origin group, tribal affiliation or names associated with a national origin.

BAL Analysis: Employers should be aware of their obligations and restrictions in the current enforcement environment. Companies are encouraged to conduct regular reviews of their Form I-9 procedures, as well as their hiring practices, to ensure that they are in compliance with the law. BAL can assist in the review and internal auditing process.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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