Employers Skate on Thin Ice With Immigration Compliance, Bias

Employers have been subject to a whirlwind of new and evolving immigration policies over the last year and a half that have kept them on their toes. How they respond determines whether they also risk violating employment law and anti-discrimination measures in particular.

Both Procter & Gamble and Bank of America found that out when they were sued recently over allegedly refusing to hire immigrants with work permits through the Deferred Action for Childhood Arrivals program.

The cases present the question of what employers should do if they’re concerned about hiring someone whose immigration status and work authorization could end in the near future. The issue has taken on increased importance with the Trump administration’s ending of DACA as well as temporary protected status for the nationals of several countries.

The companies “were trying to avoid the problem that the government is confronting them with and suddenly plaintiffs’ attorneys are going after them,” David Grunblatt of Proskauer Rose in Newark, N.J., told Bloomberg Law.

“Employers are being thrown a bunch of mine fields out there,” Jorge Lopez of Littler Mendelson in Miami told Bloomberg Law. Policies and interpretations of policies and regulations are constant, and employers often don’t hear about it until after they’ve already changed, he said.

Companies “want to do the right thing, but they’re not sure what the right thing is anymore,” said Lopez, who heads his firm’s Global Mobility and Immigration Practice Group.

Employers do, however, need to realize that the “flip side” of being aggressive in ensuring compliance with immigration requirements is the increased risk that other labor and employment laws are violated, he said.

“An employer is constantly caught betwixt and between” immigration law and employment law, Grunblatt said.

That’s been the case for a while, “but there’s absolutely no question that they’ve been greatly heightened by the current environment,” he said.

Expiring Work Authorization

One of the key issues for employers has been how to respond to immigrant workers whose status and work authorization could end soon as a result of Trump administration policies, Ian Macdonald of Greenberg Traurig in Atlanta told Bloomberg Law. Those workers include those with DACA protections and temporary protected status.

“There is a big concern” among companies that want to identify potentially affected employees “so that they can help them find alternative options and continue working without interruption,” said Macdonald, who co-chairs the Business Immigration & Compliance Practice and his firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group.

It would be easy to delve into employees’ employment verification, or I-9, forms for that information, but it’s illegal to search those forms for the purpose of finding out someone’s immigration status, he said. Employers can, however, conduct an internal I-9 audit as long as it’s done consistently among all employees and workers aren’t singled out based on citizenship or immigration status or their national origin, he said.

There are also other companies that want to avoid hiring employees whose long-term work authorization is in question, Macdonald said.

Those companies can face liability depending on how they solicit that information, he said. An interviewer can’t, for example, ask an applicant if he or she needs visa sponsorship because he or she speaks with a foreign accent, he said.

Employers also should be careful not to ask immigrant workers to provide specific work authorization documentation or more documentation than needed, Macdonald said. That’s a “big area” where the Justice Department will “really come down hard,” he said.

DOJ Enforcement

But how the DOJ will enforce the laws under its purview remains to be seen.

The agency’s Immigrant and Employee Rights division is charged with enforcing the Immigration and Nationality Act’s anti-discrimination provision, which bans discrimination on the basis of citizenship and immigration status. The IER also brings national origin discrimination claims against small employers.

The IER, formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, was relatively dormant until the Obama administration, when it started numerous investigations of employers for alleged bias against immigrants.

That was particularly true for employers enrolled in the E-Verify electronic employment verification system, Macdonald said.

“Some of those companies have been audited and they get extremely frustrated when they’ve tried to do the right thing” and either have to fire a quarter of their workforce because they’re undocumented or get slapped with discrimination charges, he said.

New Focus on Protecting U.S. Workers

Early in the Trump administration, the IER took on a new initiative of enforcing the INA’s anti-discrimination provision against employers for discriminating against U.S. citizens in favor of temporary foreign workers.

“I really thought that the IER” was going to “go back to its cave,” Lopez said. But instead of eliminating or defunding the division, the administration “changed its mission” to protect U.S. workers, he said.

There’s “been this subtle change from protecting employee rights” to “making sure that companies are hiring American,” Macdonald said.

That’s not to say that the IER has completely abandoned its investigations of employers for discriminating against immigrants.

Of the 19 settlements the IER has reached with employers since Trump’s inauguration, only two involve discrimination against U.S. citizens in favor of temporary foreign workers. Most of the others involve claims that immigrant workers were required to produce specific documents proving their work authorization.

The IER also has been known to refer cases to the Equal Employment Opportunity Commission, which enforces the national origin anti-discrimination provisions of Title VII of the 1964 Civil Rights Act against larger employers, Macdonald said.

Although EEOC statistics show a recent dip in national origin charges, the agency maintains protection of migrant and other vulnerable workers as one of its enforcement priorities.

There’s also the threat of private litigation as well, as was the case with Procter & Gamble and Bank of America, said Grunblatt, co-head of the Immigration & Nationality Group in Proskauer’s Labor & Employment Law Department.

Liability Inevitable?

The rapid pace and nature of the Trump administration’s immigration policies ultimately may land even the most careful employers in hot water.

Some of those policies contain “nuanced language” that’s open to interpretation, Lopez said. Employers take action based on what they believe is the correct interpretation, but feel that their risk is low because it’s not an area that has been a subject of government enforcement in the past, he said.

Now, however, there’s an increased risk from both a change in the policies as well as new enforcement practices, Lopez said.

One example: U.S. Citizenship and Immigration Services’ recent interpretation of regulations allowing international students who graduate with science, technology, engineering, and mathematics degrees to work in the U.S. for up to three years post-graduation.

The agency recently updated its website to state that participants in the optional practical training program for STEM graduates can’t be placed at third-party work sites, effectively blocking staffing companies from participating in the program. Companies didn’t anticipate this interpretation, leaving potentially thousands of STEM OPT workers at risk of violating the terms of their immigration status.

This kind of “overnight” policy shift “causes this urgency and stress,” Lopez said. “Companies like to work methodically,” not in “crisis mode,” he said.

“I don’t think we’ve seen the full impact yet” of the immigration policy changes, Grunblatt said. “It’s going to be a very interesting picture” in the next year or so, he said.

“This is a very effective campaign to discourage and decrease business immigration,” Grunblatt said.