Who, What, Why . . .

Business People Diversity Team Corporate Communication ConceptWho does it apply to: Part of the protection comes from Title VII, which applies to employers with 15 or more employees. An overlapping part of the protection comes from the Immigration Reform and Control Act (IRCA), which applies to employers with four or more employees.

What is the issue: Title VII was passed in the 1960s to protect against discrimination based on race, color, religion, sex or national origin. The IRCA was passed to resolve a number of immigration-related issues but includes a provision that protects against employers discriminating in hiring or discharging an employee based on citizenship or immigration status (not including unauthorized aliens).

What am I required to do: Employers are required not to discriminate against employees on the basis of national origin. More specifically, employers are required not to treat an employee adversely with any consideration of his or her national origin, citizenship or immigration status in relationship to any significant aspect of employment.

What constitutes a violation: There are two kinds of violations: direct mistreatment and disparate impact. Direct mistreatment is straightforward. If an employer affirmatively mistreats an employee because of national origin, citizenship or immigration status by failing to hire or firing the employee, it can be actionable discrimination. Similarly, employers who demote or otherwise significantly slight an employee based on national origin may be liable for disparate treatment.

Disparate impact is more subtle. If an employer creates a policy that is neutral or non-discriminatory on its face, that policy might have a consequence of negatively impacting workers of one national origin more significantly than others. If an employer institutes a policy that employees must have clear English diction, the policy itself does not seem discriminatory because it may affect any worker. That said, certain national origins might be adversely affected because of their accent. This facially neutral rule has a disparate impact against workers of certain national origins and may create a claim.

What counts as a national origin, citizenship, or immigration status: The law goes way beyond what most employers would think:

  • National origin includes birthplace, ancestry, culture, linguistic characteristics and accent.
  • Citizenship includes U.S. citizenship and citizenship of another nation for individuals legally in the country under U.S. law.
  • Immigration status includes any type of U.S. government-authorized visa or other work authorization that declares the intention to become a U.S. citizen.

What if my employee violates without consent: Choose carefully who you place in charge. Employees placed in positions of authority with the power to control the circumstances of other employees are not personally liable. Their liability is placed with the employer even if the employee acts without authority. The same is true of independent contractors (whether properly characterized or not) placed in positions of authority over employees.

What if national origin or citizenship is a requirement of the job: Sometimes an employer may require a person to have a certain national origin, citizenship or immigration status to obtain a position. An exception is made in the law for what are called Bona Fide Occupational Qualification’s (BFOQ). BFOQs are complicated, however. You should always check with your employment counsel before enacting a BFOQ.

Can retaliation play a part: Title VII and the IRCA protects employees who engage in protected activities such as supporting another employee’s claim of discrimination, resisting instruction to discriminate, and filing a complaint about discrimination with the employer or the appropriate governmental agency. Employers cannot negatively impact a significant aspect of employment for an employee who supports another’s national origin, citizenship or immigration status or their complaint against discrimination based on these characteristics. Employers also cannot retaliate against an employee for complaining of discrimination based on these characteristics or making a charge of discrimination with the appropriate governmental agency.

What about harassment: Even if an employer does not discriminate against an employee directly, the employer may be liable if its employees harass an employee about his or her national origin, citizenship or immigration status. The harassment must be significant enough to interfere with the employee’s working conditions or ability to handle his or her job, but little harassing actions can add up to enough harassment to support a claim. An employer has a responsibility to be aware of what is going on with its employees and discipline employees for harassing conduct.

Common Situations:

Only English spoken here: USA Construction institutes a policy that all employees must speak English only, at all times. Is there a problem? Maybe. English only policies are subject to very strict scrutiny and are presumed invalid by the EEOC. Employers are better off making requirements that employees be capable of speaking English so that all staff can communicate in one language, but even these policies must be made for a demonstrable business reason. Advise employees of the requirement and explain the consequence of breaching this policy to all employees.

What was that you said: Borat accepted a position at Phonetics, Inc. Within the first week, however, problems arose. Borat, a recent immigrant from Kazakhstan, has a very, very thick accent and is hard for employees and customers to understand. His co-workers begin to ridicule him and the company lets him go. National origin claim? Yes and maybe. If Borat complained of the harassing ridicule, he may have a claim. If Phonetics, Inc. truly terminated Borat because no one can understand him, and it significantly impedes business with no way to adjust or fix it, there may be no claim on the termination.

Illegal failure to hire: Mike, an undocumented citizen of another country, applies for a job with Tourism Unlimited. He is qualified for the position but is not hired because he is an undocumented worker illegally in the US. Does he have a claim? Generally, undocumented workers who are not hired because of their undocumented status have no claim since it is illegal for businesses to hire them in the first place.

What Should I Do:

Good: Count up your workers every few months to know whether the law applies to you. Institute an anti-discrimination policy including national origin, citizenship or immigration status discrimination.

Better: In addition to developing a policy, control who is permitted to interview and make material decisions about employees to be sure they are aware of the concerns of these types of discrimination.

Best: In addition to the items above, create job descriptions for each position. Use the job descriptions to prepare advertisements for positions, to ask objective interview questions, and to create a uniform and objective performance review system to avoid accidentally discriminating against someone based on national origin, citizenship or immigration status.

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Who, What, Why . . .

Who Does It Apply To: All business owners hiring employees to work within the United States.

What Is An I-9 Form: Hopefully, you are all familiar with the I-9 Form. All employers are required to complete one for all new employees by the Department of Homeland Security and the U.S. Citizenship and Immigration Services (“USCIS”). Its purpose is to help employers determine whether applicants are authorized to work in the United States. Of course, it is also used by USCIS to make sure employers don’t hire workers who are unauthorized to work in the United States.

How Do I Properly Complete The Form:

How does the form work: An I-9 Form requires both the completion of basic citizenship information and verification of identification proving the right to work. There are three parts or “Sections” to the document. Section 1 is information about the employee. Section 2 is the verification of documents for employers. Section 3 can be used if an employee is rehired within 3 years of separation.

When to fill it out: An I-9 Form must be completed for every new employee hired after November 6, 1986. Prepare the form before the employee begins work on their first day by completing Section 1. Then, be sure the employee meets the requirements of Section 2 within 3 business days of the first day of work. Never complete the form before the prospective employee is offered employment and accepts the job. Doing so earlier creates a possible discrimination claim if the person is not hired.

How do I fill out Section 1: Employers do not fill out Section 1. It is to be completed by the new employee before beginning work on their first day. The employee must complete their full name, address, date of birth, attest to citizenship or immigration status, and sign and date the form. Employers do have responsibility to make sure the employee has completed all of Section 1 with information that conforms to the questions asked in Section 1, i.e., putting an address in the address box.

How do I fill out Section 2: Within three business days of the first day of work, the employee must present original documents found on the Lists of Acceptable Documents at the end of the I-9 Form. The employee must be sure the documents you accept are not expired. You then fill out Section 2 of the I-9 Form and retain it. Do not specify to your new employees which documents they provide or ask for different or additional documents, or comment on their choices.

How do I fill out Section 3: Employers may choose to complete Section 3 if rehiring an employee within 3 years of prior separation. Employers are not required to use Section 3 for a rehire and may fill out a new I-9 Form.

How do I know the documents are real . . . or should I care: Employers are required to accept documents that “reasonably appear” to be genuine. This gets into sticky territory for employers. After all, you are not an expert on documents. If you complain that documents are not real when they are or appear to be, you can get in trouble for discrimination. If you accept documents as real when they are not, you again make a mistake and get in trouble with USCIS. My advice – print yourself a copy of the illustrations of acceptable documents from Part 8 of the USCIS Handbook for Employers. Unless the documents appear patently false, accept them. If you make copies for examination by the human resources office at hire, don’t keep the copies. If you keep them, USCIS can examine what you looked at and decide for you.

What if I get contradictory documents: If the employee correctly follows the List of Acceptable Documents, you should not get contradictory documents. Sometimes, however, an employee will bring in what appears to be a valid non-immigrant alien document from List A and a social security card or US Citizen ID card. If the person only presented the non-immigrant documents, you would be fine, but we all know it would be difficult to have a social security card and a non-immigrant status at the same time. In this situation, you have a judgment call to make. You can take the document from List A and move on or you may consider calling USCIS for advice.

What do I do with the completed form: Employers must retain every employee’s I-9 Form while the employee works for them. As noted above, I don’t recommend keeping copies of the documents you receive, but remember to keep them for all employees if you keep them for some. I-9 Forms can be retained either on paper, or electronically.

Form I-9 – Employee Eligibility Verification

Forms are stored, they must be in a secure location or system that protects against the alteration or loss of the Forms.

What about reverification: Employers are not permitted to reverify employees who present permanent right to work documentation, however, employers are specifically required to reverify all employees who present documents of a temporary right to work. Reverification must be done by the expiration date so employers need to calendar this responsibility.

What do I do after the employee leaves: After termination, employers must keep the I-9 Form for the longer of: (a) three years after the date of hire, or (b) one year after the date employment terminated, whichever is later.

What is E-Verify: E-Verify is a federal database to help employers confirm the employment authorization of new hires that is free and available in all 50 states. Employers who participate in E-verify must complete an I-9 Form and then create a “case” in E-verify that includes information from both Sections and the employee’s social security number. E-verify will issue a response regarding the employee’s authorization status. Employers may not use E-verify to pre-screen applicants for employment, check employees hired before the company became an E-verify participant, or reverify employees. If an employer uses E-verify to authorize one employee, it must use it for all employees. E-verify is currently voluntary for all Texas employers, except for federal contractors, but may be made mandatory for all employers soon.

Common Situations:

Consistency is key: Ray has attested to being a U.S. citizen on Section 1 of the I-9 Form, but presented his new employer, Callahan Auto, with a “green card” the next day to complete Section 2. Should Callahan accept this document? No. Employers are not expected to be immigration law experts, but the document is inconsistent with the status attested to and therefore, is not reasonably related to Ray.

But I didn’t do it: SMI acquired McGuire, Inc. along with its employees. SMI did not take any action towards verifying Maguire’s employees’ identity and employment authorization. Is SMI liable for errors made on Maguire’s I-9 Forms? Yes. Companies acquiring another company’s employees have the option to either retain the previous owner’s I-9 Forms or complete new I-9 Forms.

English as a second language: Estoban’s Fine Restaurant hires Isabella because of her world famous cooking skills. She speaks only Spanish. Estoban locates and prints off the Spanish I-9 form which Isabella completes with no complications. Six months later the restaurant is audited. The only violation they can find is Isabella’s I-9. Why? As ridiculous as it may sound, the Spanish I-9 form is only for use in Puerto Rico.

What Should I Do:

Good: Don’t complete the I-9 Form before the employment relationship is consummated. Notify new employees to bring documents for the completion of Section 2 on the first day of employment and get it out of the way. Don’t keep copies of the documents for Section 2. Be careful not to discriminate against employees based on their documentation. Make sure the I-9 Forms are stored in a secure location that can still be accessed on three days’ notice.

Better for Some, Not for All: All of the above, and use the E-verify system to ensure you are maintaining a legal workforce. Certain industries, however, may not want to voluntarily subject themselves to E-verify. You know who you are.