The process of interviewing and hiring new employees is more complicated than ever, thanks to an array of federal and state laws. These laws require employers to confirm certain information, but sometimes prohibit them from asking particular pertinent questions.
Determining what questions to ask new employees in Lombard regarding immigration status can be especially tricky. It is easier to understand what you need to ask—and avoid asking—if you understand the legal provisions involved, which a knowledgeable attorney could help you interpret.
The federal Immigration and Nationality Act specifically prohibits four types of discrimination relating to immigration status in an employment setting. Employers may not:
These anti-discrimination provisions are enforced by the Immigrant and Employee Rights (IER) Section of the United States Department of Justice.
While employers must be careful not to ask questions that could deter eligible immigrants, they are required to verify that potential employees are legally eligible for employment. Failure to properly verify authorization and document such authorization can lead to fines and other consequences for employers in Lombard.
All new employees must fill out an I-9 form before starting work, and their employers must ask for documentation to verify the information on the form. The I-9 provides a list of acceptable forms of identification and other documents that will satisfy the requirements and verify a worker’s identity and employment eligibility.
For employees with readily recognizable documents such as a U.S. passport or permanent resident card, this may not prove too difficult. Unfortunately, for other documentation such as a Native American tribal document or a Form I-94 specifying nonimmigrant admission under a Compact of Free Association, authentication may prove difficult.
However, if the employer suggests a document is counterfeit when it is indeed genuine, the employer may be liable for discrimination in verifying employment eligibility. An attorney could go over what actions may qualify as discriminatory in further detail.
There are a few specific questions that employers may ask potential employees regarding employment eligibility. Questions that have traditionally been considered safe to ask and essential to ascertain a potential employee’s eligibility include:
In a technical assistance letter written in response to a query about questions that can be asked of new employees, the IER Section of the Justice Department clarified that it is also permissible to ask whether an employee or applicant would need sponsorship in order to work legally, whether they have certain training status, and whether that status could be extended. Effectively, the query was about whether it was permissible to show preference to one type of visa holder over another when both types were nonimmigrant visas—in other words, when the holders were not lawful permanent residents.
The aforementioned employment discrimination protections extend only to those who are legally eligible to work in the United States. Showing preference to a class of workers with a nonimmigrant temporary visa who would need sponsorship would not generally violate the nondiscrimination provisions.
However, the IER issued another statement opining that asking job applicants about their immigration or citizenship status may deter them because they are protected from citizenship status discrimination. Questions must be phrased in a way that will gather needed information but not make protected classes of individuals feel they may be ineligible.
In other situations, it has been ruled impermissible to ask applicants to provide proof of their work eligibility in the U.S. for one year or more. Employers are also not permitted to ask whether an applicant’s visa or immigration status prevents them from being legally employed. Even asking an employee to specify their citizenship or immigration status has been declared impermissible.
Since the rulings and laws on discriminatory situations evolve frequently, it can be difficult to know what an employer can and cannot ask potential employees. Employers who struggle to understand the correct questions to ask new employees in Lombard may want to seek counsel from an immigration attorney who could help devise questions crafted to elicit necessary information without running afoul of anti-discrimination provisions. Contact us today for more information or to schedule a consultation.
