Most employers know that it is illegal to discriminate in the employment process. Employment discrimination commonly occurs when an employee or job applicant is treated unfavorably because of his or her race, skin color, gender, disability, religion, or age, among other factors. It is also against the law to retaliate against an employee or job applicant who makes a claim of unlawful discrimination.
Many employers may be unaware of the law that prohibits discriminating against work-authorized, non-U.S. citizens when verifying their work authorization at the start of employment. The Immigration and Nationality Act (“INA”) prohibits discrimination against individuals who are otherwise authorized to work in the U.S., even if they are not U.S. citizens.
Mrs. Fields’ Original Cookies, Inc. recently learned the hard way that it may not discriminate against non-U.S. citizens when verifying their work authorization for employment. The U.S. Justice Department disclosed in December 2018 that Mrs. Fields had been requiring lawful permanent residents to provide specific documentation to prove their work authorization status, while not imposing that specific documentation requirement on U.S. citizens.
Under the INA, all work-authorized individuals, regardless of citizenship status, have the right to choose which document to present to employers, from a range of valid documents, to demonstrate their authority to work in the United States. In the employment context, work authorization typically arises at the point in the hiring process when an employer needs to verify an employee’s work authorization. This is accomplished by following the guidance under Form I-9.
Although all U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment, the INA provides a specific list of acceptable documents evidencing identity and employment authorization. An employer, as Mrs. Fields now knows, may not pick-and-choose what documents it will accept. Rather, an employer must accept any valid authorization document presented by an applicant.
Under the settlement reached with the Justice Department, Mrs. Fields will pay $26,400.00 in civil penalties to the United States and be subject to monitoring and reporting requirements.
What lessons may be learned from the Mrs. Fields experience? First, acknowledge that it is not desirable for an employer to create a recipe for employment verification that differs from the recipe set forth within federal law, to use a baking metaphor. Second, employers should be aware that all U.S. citizens, lawful permanent residents and other work-authorized individuals are protected from national origin discrimination in the workplace. Employers may not request more or different documents than are required to verify employment eligibility, as set forth under the I-9 process, with the purpose or intent of discriminating on the basis of citizenship or national origin. We suggest consulting with your employment law attorney with any questions or for a review of your hiring practices to make sure that they comply with applicable state and federal law.