A staffing company was in the dock recently for allegedly discriminating against job applicants when verifying their employment eligibility. They were accused of requiring different documents like Form I-9 and E-verify based on the candidate’s by considering individual’s citizenship status – although they exempted US Citizens from such a requirement. Such an action directly contradicts the Immigration and Nationality Act (INA) which prohibits employers from using discriminatory documentary policies, procedures or requirements based on citizenship status or national origin when initially determining or subsequently re-verifying an employee’s authorization for employment.
All employers know that they are not permitted to check if any applicant is a US Citizen before hiring, firing, recruiting or referring for a fee, unless required by law, regulation, executive order or government contract to do so. Exhibiting a preference for undocumented workers over permanent citizens is also prohibited. Any employment eligibility verification done using an I-9 form must follow an offer to hire – not precede it! Not verifying such credentials is also not an option because employers are prohibited from hiring undocumented workers who are ineligible to work, without the necessary documents.
The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices enforces antidiscrimination provisions. It protects workers from employment discrimination based upon citizenship status and national origin, unfair documentary practices when verifying the employment eligibility of employees, and retaliation. OSC advises employers to base all termination decisions on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of their employees.
Changes to Guidance:
During the last 2 months, the OSC has issued clarifications on the manner and extent to which employers may ascertain a potential candidate’s citizenship status:
This has significant implications for the staffing industry. Accepted business practice is for a client to require a staffing agency to verify authorization to work in the U.S. prior to assignment commencement. In most agencies, the worker has been hired by the staffing agency specifically for the client engagement, and employment will end at the completion of this engagement. In these cases, the worker is a “new employee” of the staffing agency and will need to provide original documentation. However, in cases where the worker is employed by the agency but “on the bench” until an assignment starts, the agency must maintain the necessary documentation on file and provide it to the client as evidence of worker eligibility. This is typically the case with workers under an H-1B visa.
Our advice is to introduce an additional layer of protection by requiring every supplier to provide contractual provisions and warranties which enforce its Form I-9 obligations. We also encourage agencies to use E-Verify, a free and easy web-based service that lets participating employers quickly verify the eligibility of their new employees to work in the United States. By doing so, employers also have the added benefit of using one of the most effective tools available to verify the worker’s identify.
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