Hiring new employees can be stressful because there are so many unknown factors when working with unfamiliar personnel. Both federal and state laws prohibit asking certain questions that could violate the civil rights of an employee in Bolingbrook. Yet federal laws require that employers verify specific information, such as employment eligibility for immigration purposes.
Many of the questions to ask new employees in Bolingbrook involve employment authorization. Employers who do not have the appropriate information ascertained and documented risk incurring heavy fines or other penalties. However, asking the wrong questions can expose Bolingbrook employers to liability. Often, companies choose to work with an immigration attorney to formulate a plan to gather the needed information while avoiding the potential for liability.
Overall, employers must strive to strike a balance between asking for enough information without asking for too much. Employers need to verify employment eligibility but must not ask for so much information that they could be considered to be discriminating against potential employees based on citizenship or immigration status.
In the hiring process, the Immigration and Nationality Act (INA) prohibits discrimination on the basis of citizenship, national origin, or immigration status. The INA also disallows “unfair” documentary practices while an employer is verifying an employee’s work eligibility. Employers may ask for documentation only in the manner prescribed by the government. Asking for additional evidence or exhibiting a preference for a particular type of document could be perceived as “document abuse.”
The Office of Special Counsel for Immigration-Related Unfair Employment Practices at the U.S. Department of Justice has issued a technical assistance letter that describes some questions employers can ask new employees in Bolingbrook without incurring liability for discrimination. An employer may ask an applicant, “Are you legally authorized to work in the United States for our company?” This question enables an employer to gain information about employment authorization without inquiring into the source of the authorization. Employers may not ask a prospective employee to demonstrate proof of citizenship or other eligibility until after hiring.
Employers may also ask if a prospective employee requires sponsorship for an employment visa to work legally, either now or in the future. Because employers are not obligated to provide such sponsorship, they have the right to ask this question.
If employers choose to pose these questions to one applicant, they must ask the same questions of all applicants, even if they believe they know the answer. This shows that the employer is treating all applicants fairly without discrimination.
Employers should follow the instructions on the I-9 form carefully when verifying an employee’s work authorization. The instructions give workers a choice of different documents to provide to prove their identity and employment eligibility. Employers may not require a specific document or ask for additional documentation.
While employers are not permitted to discriminate against citizens, lawful permanent residents, refugees, and asylees, they are also not required to hire workers with temporary employment visas who may require sponsorship. Therefore, if an employer refuses to hire an individual solely because that person lacks permanent work authorization and may require sponsorship, the employer does not commit unlawful discrimination.
Even in situations where an employer has legal grounds to ask a question or refuse to hire an individual, such as where a potential employee requires sponsorship, employers must exercise caution. Workers can still file a claim alleging that the actual reason they were not hired stems from discrimination against national origin. It is wise for employers to take care with the questions they ask and to provide appropriate reasons for refusal to hire an applicant.
To assist in complying with nondiscrimination provisions while still gaining the information needed to satisfy immigration law requirements, many employers elect to consult an immigration lawyer. Questions to ask new employees in Bolingbrook should be carefully prepared and asked the same way in every situation to avoid discrimination.
