The division of the U.S. Department of Justice dedicated to enforcing the anti-discrimination provisions of the Immigration & Nationality Act (INA), namely the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), recently announced settlement agreements with two large-based corporate employers arising from their alleged discrimination against employment-eligible foreign nationals. Collectively, the announced settlements serve as a reminder to U.S. employers to avoid discrimination in the recruitment and employment verification process of foreign nationals. You can achieve this in part by changing internal policies and manuals to reflect the INA’s protections as well as by training human resources personnel.
On March 28, 2012, the OSC settled a violation of the anti-discrimination provisions of the INA by Onward Healthcare, Inc., a national health care staffing company based in Connecticut involving mostly rehabilitation, therapy, and travel nursing positions. The settlement entailed a $100,000 civil penalty for Onward’s broad-based recruitment efforts over more than 12 months to recruit only health care workers that were U.S. citizens. In a longstanding recruitment campaign exceeding a year, Onward advertised via the Internet hundreds of available health care positions by mandating that each employment position’s minimum requisites included U.S. citizenship. The OSC noted that employment-eligible foreign nationals, including lawful permanent residents, and those holding employment authorization documents, should have been allowed to apply as well. U.S. law only permits employers to restrict employment opportunities to U.S. citizens if such jobs are necessarily limited to
citizens by law, regulation, or government contract. The OSC concluded that the lack of legal basis for Onward’s publicized citizenship preference created a discriminatory barrier to foreign nationals seeking employment.
On March 22, 2012, the OSC announced a separate settlement, including civil fines and back pay, against a Ross Dress for Less store in San Ysidro, California. According to the OSC, the San Ysidro Ross store engaged in a practice of discrimination against non-U.S. citizen employees in misguided efforts taken by Ross human resources personnel to meet the requisites of USCIS Form I-9. The OSC concluded Ross personnel mandated that non-U.S. citizen employees of the store present employment-eligible documentation that exceeded the requisites of USCIS I-9 guidance. Such guidance specifies the varying forms and quantity of required employment eligibility verification documentation employers may demand as part of their I-9 Form compliance procedures. Human resource personnel of the San Ysidro store required all non-U.S. citizen workers to provide additional verification documents not called for by the I-9 Form. In doing so, the OSC concluded the store treated foreign nationals with work authorization differently during the employment eligibility verification based on their citizenship status or national origin.
These settlements serve as a timely reminder to employers who are increasing recruitment and hiring efforts of new employees in the midst of an apparent improvement in the nation’s economy. Human resources personnel should revisit the documentation requirements found in USCIS’s I-9 Form Handbook Guidance and absent legal authority restricting employment to U.S. citizens, offer available employment positions to all U.S.-based legally eligible workers, including U.S. citizens, lawful permanent residents, asylees, refugees, and those possessing valid employment authorization documents. Human resources (or related) employees who process I-9s and who advertise positions should also be trained in the legal requirements.