Questions to ask new employees in Wheaton should be phrased carefully to elicit necessary information without violating anti-discrimination laws. While the need to strike this balance is felt in many areas of questioning, it is of particular importance with respect to immigration questions.
Employers who fail to obtain adequate information and documentation face heavy fines and other consequences. At the same time, asking for too much information can subject them to penalties that are just as problematic. To gain the needed data without incurring liability, many employers elect to work with an immigration attorney when formulating questions for prospective employees and new hires.
Federal laws protect employees and prospective employees from discrimination on many different factors such as race, religion, and gender. However, employers in Wheaton are not always aware of the anti-discrimination provisions regarding immigration status.
When asking questions of new or prospective employees, it is important to avoid giving the appearance of illegal discrimination. When an employer poses a question to one job applicant, that employer should ask the same question of all applicants, even if the answer may seem apparent. Equal treatment is one means to avoid discriminatory practices.
Most employers cannot establish a policy of only hiring applicants who are U.S. citizens or lawful permanent residents. However, an employer may decline to hire an applicant that will need the sponsorship of an employer to work legally in the U.S. Care must be taken to document the reason for refusing to hire such applicants or they may be able to claim that they were not hired because of their nationality or ethnic background.
Before hiring an employee, employers are legally obligated to find out whether the employee is authorized to work in the U.S. In many cases, the authorization could come from status as a citizen or a lawful permanent resident.
However, numerous other individuals also hold the authority to work legally such as refugees with an Employment Authorization Document. An employer can and should ask a prospective employee if he or she is authorized to work in the U.S. Yet, the employer may not ask for proof of eligibility, which would reveal the applicant’s immigration status.
As part of questions asked of new Wheaton employees, the employer may ask if the employee will require sponsorship (either currently or in the future) from the employer to work in the U.S. Employers are not required to provide sponsorship, so it is not an illegal discriminatory practice to ask the question. However, if sponsorship is raised with some prospective employees but not others, it could give the appearance of discrimination based on nationality.
Only after a new employee is hired in Wheaton can the employer ask for documentation to verify the employment authorization. Specific questions should be avoided prior to hiring to avert the potential for discrimination.
An experienced immigration lawyer could help formulate questions to ask new employees in Wheaton that help obtain required information without asking for unlawful amounts of detail. It is important for employers to remain consistent and ask the same questions of all prospective employees.
General guidance about how to avoid problems when asking questions or requesting documentation may be obtained from the Office of Special Counsel for Immigration-Related Unfair Employment Practices at the Department of Justice. Assistance from a Wheaton immigration attorney may also prove beneficial.