The Immigration and Employment Rights (“IER”) Section of the Department of Justice formerly The Office of Special Counsel for Immigration Related Unfair Employment Practices, launched an initiative to target, investigate and bring enforcement actions against employers they believe are discriminating against U.S. workers in favor of foreign workers. IER’s zealous approach can spill over into legitimate use of TN visas for Mexican Nationals and TN entries for Canadians.
Export Compliance Through Protected Individuals Only Hiring Policy Is Not a 100% Safe Haven from Claims of Citizenship and/or National Origin Discrimination Claims:
At one extreme, some Employer’s think a hiring policy of hiring only “Protected Individuals” is full armor against a claim of Citizenship and/or National Origin discrimination. It’s NOT.
- The Immigration and Employment Rights (“IER”) Section of the Department of Justice formerly The Office of Special Counsel for Immigration Related Unfair Employment Practices (“OSC”) commented in a January 2015 Technical Assistance Letter that an Employee dismissed for having provided false documents of Protected Individual status during the hiring process who later brought what they claimed were the genuine documents could bring a Citizenship Status or National Origin discrimination claim in the event of termination of that Employee. Legacy OSC said it would investigate such as charge, but qualified its statements by saying “an employer with a consistently-followed policy of terminating individuals for providing false information during the hiring process may have a legitimate non-discriminatory reason for the termination. Accordingly, whether or not this Office concludes that such a termination violates the anti-discrimination provision depends upon the facts presented.”
- That is not exactly a ringing endorsement of a “Protected Individuals Only” hiring policy.
Some Employer’s think they cannot ask any questions about Citizenship and National Origin in the hiring process, but that is NOT True.
- Legacy OSC (now the Immigrant and Employee Rights Section of the DoJ or IER) has published several technical assistance letters on this topic. For example, February 2013 Technical Assistance Letter states in pertinent part that “If the information is sought for compliance with export licensing requirements, and not for employment eligibility verification or any discriminatory purposes, inquiring about an applicant’s citizenship or country of origin for this purpose would not appear to violate the INA’s anti-discrimination provision as long as such inquiries are made uniformly and without the intent to discriminate on the basis of national origin.”
- These pre-employment questions, must be carefully crafted and the need to know cannot be speculative.
- How do you frame these pre-employment questions?
- That’s where effective Counsel who understands both Immigration and Export Compliance comes in. IER will not give Employers legal advice.