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How to Avoid Immigration-Related Employment Discrimination

This article is adapted, with permission, from a brochure issued by the National Council of Agricultural Employers. A video tape on the subject is also available from NCAE (see "Resources" on page 14).

What Is the Immigration Reform and Control Act and What Does It Require of Employers?

The Immigration Reform and Control Act (IRCA) has been law since 1986. It has two main requirements of employers: (1) to hire only persons authorized to work in the United States and (2) to not discriminate on the basis of citizenship status or national origin.

Employers and workers newly hired since 1986 must complete an I-9 Form to certify employment eligibility. Workers must show the employer documentary evidence that they are authorized to work in the United States. The Immigration and Naturalization Service (INS) Handbook for Employers explains how to complete the I-9 Form and what worker documents are acceptable. INS can levy fines against employers for failing to properly complete an I-9 Form on each new hire. In addition, heavy fines and criminal penalties can be imposed on employers who knowingly hire undocumented workers or accept fraudulent documents.

Employers may not refuse to consider all qualified persons with work authorization, whether citizen or non-citizen. Employers must accept any document listed in the INS Handbook for Employers, and may not arbitrarily specify an INS document, or require additional documents. Employers may not refuse to hire a qualified worker whose employment authorization expires at a later date. IRCA imposes back pay and severe penalties on employers who commit immigration-related employment discrimination.

Summary of Agricultural Employer Duties Under IRCA

Avoiding Discrimination on the Basis of Citizenship Status

Employers are prohibited from discriminating against persons in hiring, discharging, and recruiting and referring for a fee because of their citizenship status. Permanent and temporary residents, refugees, asylees, and U.S. citizens are protected. Employers must use uniform and fair I-9 Form completion procedures when hiring individuals.

Discrimination could be costly to violators. It is easy to avoid immigration-related employment discrimination and still comply fully with IRCA. Just follow the simple guidelines illustrated here.

Common examples and alternatives

  1. Prematurely requesting documents. Employer asks to see a job applicant's documents before making a decision that the person is qualified and extending a job offer. Person does not get job and believes that citizenship status discrimination, revealed through the examination of the documents, is the reason.

A better approach: After determining the applicant is qualified for the job, employer makes a job offer conditioned upon the applicant's providing adequate documentation of work authorization and identity.

  1. Requesting more or different documents. Employer asks for a particular kind of document, such as a "green card," a document with an Alien Number, or another INS document, in addition to those offered by applicant.

A better approach: Employer allows applicant to provide any documents indicated on the A list or the B and C lists of acceptable documents accompanying the I-9 Form.

  1. Asking only certain persons for documents. Employer requests work authorization documents only from persons with accents or foreign-sounding names or appearances.

A better approach: Employer asks all successful applicants to whom a job offer is made for documents.

  1. Hiring only citizens or non-citizens. Employer hires only citizens for jobs, although the employer is not required to do so pursuant to law or government contract; or employer prefers and hires non-citizens rather than citizens for certain types of work.

A better approach: Employer hires qualified persons with proper documentation, regardless of citizenship status.

  1. Rejecting persons whose work authorization expires in the future. Employer refuses to hire person because employment eligibility document indicates that it expires at some future date.

A better approach: Employer hires person with the understanding that the person will provide evidence of continuing employment authorization before expiration date on the document. Employer accepts any approved document before expiration of previous document.

  1. Inaccurately concluding that documents are false. To avoid employer sanctions, employer routinely calls government agencies to determine whether documents offered by applicants are legitimate. Employer relies upon information to incorrectly decide that applicant does not have work authorization and refuses to hire him or her.

A better approach: Employer reviews all documents to see if they reasonably appear to be genuine and does not routinely investigate authenticity of documents unless they clearly appear on their face to be false.

Avoiding Discrimination on the Basis of National Origin

Employers are prohibited from discriminating against persons on the basis of their national origin. "National origin" refers to the country where a person was born or where his or her ancestors came from. Employers cannot treat qualified persons differently because they have the physical, cultural, or linguistic characteristics of a national group.

Common examples and alternatives

  1. Asking only persons of a particular national origin for documents. Employer asks all job applicants believed to be Mexican to provide proof of permanent residency. Because of their national origin, perceived Mexican applicants are treated differently. This also may be discrimination on the basis of citizenship.

A better approach: Employer asks all applicants (regardless of place or birth of ancestry) to whom a job offer is made to provide any documents indicated on the A list or B and C lists of acceptable documents accompanying the I-9 Form.

  1. Requiring unnecessary language proficiency. Employer requires all employees to speak English fluently on the job, regardless of whether competent performance of the job requires such skills. Persons with accents or limited English ability are not hired for field production and harvest jobs, even though English fluency is not essential to performing them.

A better approach: Employer establishes English language skill requirement for employee whose duties include frequent communication with the public but not for field work where it is not essential.

Penalties for Discrimination

Fines

Fines are up to $1,000 per person for violations where the employer requests more or different documents than are required or refuses to honor documents that on their face reasonably appear to be genuine.

Other types of discrimination carry fines of up to $2,000 per person for the first offense, $5,000 for the second offense, and $10,000 for the third or more offenses.

Back pay and other remedies

In addition to fines, employers can be ordered to pay lost wages for applicants not hired or employees discharged in violation of discrimination provisions. Employers can be ordered to hire applicants or reinstate discharged employees if discrimination is found.

For further information on immigration-related discrimination and IRCA compliance, contact -

Office of Special Counsel
U.S. Department of Justice
P.O. Box 65490
Washington, DC 20035-65490
800/255-7688

National Council of Agricultural Employers
1735 I Street NW, Suite 704
Washington, DC 20006
202/728-0300
Attention: Sharon Hughes

American Farm Bureau Federation
600 Maryland Avenue, SW, Suite 800
Washington, DC 20024
202/484-3600
Attention: Libby Whitley

For copies of the Handbook for Employers, Revised Nov. 21, 1991 (Instructions for Completing Form I-9), write -

Superintendent of Documents
U.S. Government Printing Office
Washington, DC 20402

 

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