OSC-Immigration and Unfair Employment Practices
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The U.S. Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices works to prevent employment discrimination based on immigration status or national origin. The document provides examples of discriminatory practices, such as demanding different documents from non-U.S. citizens during the hiring process or terminating workers who receive tentative nonconfirmations in E-Verify on a selective basis. Employers who engage in such discrimination may face civil penalties or be required to pay back pay. Workers who believe they have experienced discrimination are encouraged to contact the OSC Worker Hotline.
OSC-Immigration and Unfair Employment Practices
- 1. ? ? Immigration?Status?and?National?Origin ?? Discrimination?in?Employment ? ? The? U.S.? Department? of? Justice,? Civil? Rights? Division,? Office? of? Special? Counsel? for? Immigration©\Related? Unfair? Employment? Practices? (OSC)? works? to? ensure? that? employers? do? not? discriminate? against? individuals? who?are?permitted?to?work?in?the?U.S.?based?on?their?immigration?status?or?national?origin.??? ? Employers? discriminate? on? these? unlawful? bases? when? they? fail? to? give? equal? treatment? to? workers? in? the? hiring? and? firing? process? on? the? basis? of? where? the? workers? are? from? or? appear? to? be? from,? or? whether? the? workers? are? U.S.? citizens? or? not.?? Employers? may? also? discriminate? when? they? treat? workers? differently? on? these?bases?in?the?Form?I©\9?and?E©\Verify?employment?eligibility?verification?processes.?? ? OSC?vigorously?investigates?and?prosecutes?such?claims?of?discrimination.??Employers?found?to?be?engaging? in? discriminatory? activity? may? be? required? to? pay? civil? penalties? and? any? appropriate? back? pay? to? injured? parties.?????? ? AN?EMPLOYER?MAY?BE?DISCRIMINATING?ON?THE?BASIS?OF?IMMIGRATION?STATUS?OR?NATIONAL? ORIGIN?IN?EMPLOYMENT?IF?AN?EMPLOYER:? ? o Demands?specific?documents?from?a?worker? Example:??In?May?2011,?OSC?reached?a?settlement?that?provided?for?$45,760?in?civil?penalties? from?an?employer?that?had?a?policy?of?requiring?newly©\hired?non©\U.S.?citizen?workers?to? produce?specific?government©\issued?documentation?before?they?were?permitted?to?begin?work,? while?U.S.?citizen?new?hires?were?permitted?to?present?their?choice?of?documents?to?satisfy?the? Form?I©\9?process?and?to?begin?employment.??For?example,?lawful?permanent?residents?were?not? permitted?to?begin?work?unless?they?presented??¡°green¡±?cards,?even?if?they?had?presented?valid? driver¡¯s?licenses?and?unrestricted?social?security?cards.????? ? o Asks?certain?workers?for?more?documents?than?needed?to?complete?the?Form?I©\9?? Example:??In?October?2010,?OSC?reached?a?settlement?with?an?employer?that?provided?for? $257,000?in?civil?penalties?after?finding?the?employer?engaged?in?a?pattern?and?practice?of? requiring?naturalized?U.S.?citizen?workers?and?non©\U.S.?citizen?workers?to?produce?more? documents?than?required?by?law?for?the?Form?I©\9?process.??Specifically,?the?employer?demanded? that?non©\U.S.?citizens?produce?a?List?A?document?after?having?already?presented?List?B?and?List?C? documents,?while?permitting?native?born?U.S.?citizens?to?choose?which?documents?to?present.? ?? o Rejects?valid?work?authorization?documents?from?non©\U.S.?citizens?but?accepts?the?same? documents?from?U.S.?citizens? Example:??In?June?2010,?OSC?reached?a?settlement?providing?for?$8,586?in?back?pay?to?two?non©\ U.S.?citizen?workers?and?$2,200?in?civil?penalties?after?finding?the?employer?rejected?their?
- 2. ? ? unrestricted?Social?Security?cards?and?demanded?to?see?additional?documents?to?prove?their? work?eligibility,?but?routinely?accepted?Social?Security?cards?presented?by?U.S.?citizen?workers.?? ? o Demands?that?lawful?permanent?residents?present?new?¡°green?cards¡±?when?theirs?expire?but? does?not?ask?U.S.?citizens?to?produce?new?documents?when?theirs?expire? Example:?In?November?2010,?OSC?reached?a?settlement?including?$10,200?in?civil?penalties? against?an?employer?that?had?a?pattern?and?practice?of?requiring?all?lawful?permanent?resident? workers?who?presented?green?cards?for?the?Form?I©\9?to?present?renewed?green?cards?when? their?cards?expired,?but?did?not?require?U.S.?citizen?workers?to?present?renewed?documents? when?their?documents?expired.??Both?lawful?permanent?residents?and?U.S.?citizens?are?always? work?authorized,?regardless?of?the?expiration?of?their?documentation.??? ? o Refuses?to?hire?workers?who?sound?or?appear?foreign? Example:?In?April?2011,?OSC?reached?a?settlement?providing?for?$18,550?in?back?pay?to?a?non©\ U.S.?citizen?job?applicant?and?$3,200?in?civil?penalties?after?finding?the?employer?instituted?a? policy?of?not?hiring?any?immigrants,?leading?the?employer¡¯s?human?resources?personnel?to? reject?all?applicants?who?sounded?or?appeared?foreign.?? ? o Only?hires?U.S.?citizens?(unless?that?policy?is?specifically?required?by?law)? Example:?In?May?2010,?OSC?reached?a?settlement?providing?for?$7,100?in?back?pay?to?a?non©\U.S.? citizen?job?applicant?who?was?denied?a?job?because?he?was?not?a?U.S.?citizen?and?who?was?then? retaliated?against?for?reporting?the?employer¡¯s?refusal?to?hire?him.?? ? o Hires?workers?on?non©\immigrant?visas,?such?as?H©\2B?or?H©\2A?workers,?but?rejects?U.S.?citizens?and? other?work©\authorized?individuals?who?apply?for?work? Example:?In?May?2010,?OSC?reached?a?settlement?providing?for?$11,173?in?back?pay?to?a?U.S.? citizen?after?finding?the?employer?discriminated?against?him?by?preferring?H©\2B?temporary?visa? holders.? ? o Hires?undocumented?workers?instead?of?work©\authorized?individuals? Example:?In?November?2010,?OSC?issued?a?letter?of?resolution?providing?for?$2,000?in?back?pay? to?a?lawful?permanent?resident?who?was?discriminated?against?in?favor?of?an?undocumented? worker.? ? o Fires?work©\authorized?workers?for?lying?about?their?prior?undocumented?status,?but?does?not?fire? other?workers?for?lying?about?different?aspects?of?their?background.? Example:??In?May?2010,?OSC?issued?letters?of?resolution?after?an?employer?agreed?to?provide?a? total?of?$13,167?in?back?pay?to?several?workers,?resolving?a?case?where?the?employer? terminated?the?workers?for?having?misrepresented?their?authorization?to?work?when?they?were? hired,?despite?the?fact?that?they?had?since?legalized?their?status?and?corrected?their?information?
- 3. ? ? with?the?company.??OSC?found?that?the?company?had?not?terminated?other?workers?that? corrected?false?information?regarding?other?aspects?of?their?background.?? ? AN?EMPLOYER¡¯S?USE?OF?E©\VERIFY?MAY?ALSO?BE?DISCRIMINATORY?ON?THE?BASIS?OF?IMMIGRATION? STATUS?OR?NATIONAL?ORIGIN.??DISCRIMINATION?MAY?OCCUR?IF?AN?EMPLOYER:? ? o Terminates?or?suspends?employees?for?whom?it?receives?TNCs?on?a?selective?basis? Example:??A?non©\U.S.?citizen?worker?who?receives?a?Tentative?Nonconfirmation?(TNC)?is? terminated?or?suspended?during?the?resolution?period?while?native©\born?U.S.?citizen?workers? who?receive?TNCs?are?allowed?to?work?while?they?resolve?their?TNCs.? ? o Pre©\screens?using?E©\Verify?on?a?selective?basis? Example:??A?non©\U.S.?citizen?job?applicant?is?run?through?E©\Verify?before?he?or?she?is?hired?and?is? denied?a?job?when?E©\Verify?generates?a?TNC,?but?native©\born?U.S.?citizen?job?applicants?are?not? run?through?E©\Verify?before?hire.? ? o Pre©\screens?all?applicants?using?E©\Verify?but?does?not?hire?applicants?for?whom?it?receives?TNCs? on?a?selective?basis.? Example:???A?non©\U.S.?citizen?applicant?who?receives?a?TNC?is?not?hired?and/or?not?told?that?E©\ Verify?generated?a?TNC,?while?U.S.?citizen?applicants?who?receive?TNCs?are?hired?and?given?an? opportunity?to?resolve?their?TNCs.? ? o Selectively?requires?employees?who?receive?TNCs?to?provide?additional?documentation? establishing?their?work?authorization.? Example:??Instead?of,?or?in?addition?to,?following?the?E©\Verify?instructions,?the?employer? requests?additional?documentation?establishing?work?eligibility?from?a?non©\U.S.?citizen?worker? for?whom?it?receives?a?TNC?but?does?not?request?additional?information?when?native©\born?U.S.? citizen?workers?receive?TNCs.? ? o Re©\runs?employees?through?E©\Verify?when?reverifying?Employment?Authorization?Documents,? and?then?terminates?or?suspends?employees?who?receive?TNCs?on?a?selective?basis? Example:??Despite?the?instruction?not?to?re©\run?employees?through?E©\Verify?at?reverification,? the?employer?does?so?and?then?terminates?or?suspends?a?non©\U.S.?citizen?worker?for?whom?it? receives?a?TNC.? ? If?a?worker?you?know?has?suffered?immigration?status?or?national?origin?discrimination,?call?the?OSC? Worker?Hotline?at?1©\800©\255©\7688,?9am©\5pm,?E.S.T.?(TDD?for?the?hearing?impaired?is?at?1©\800©\237©\ 2515).??Telephone?interpreters?are?available?in?many?languages?as?needed.??It?is?unlawful?to?intimidate,? threaten,?or?retaliate?against?anyone?for?contacting?the?Hotline,?assisting?in?any?way?in?an? investigation,?or?filing?a?charge?of?discrimination?with?OSC.??? Employers?can?call?the?Employer?Hotline?at?1©\800©\255©\8155?for?guidance?on?how?to?avoid?immigration? status?and?national?origin?discrimination.??For?more?information?or?to?obtain?outreach?materials,?call? the?Hotline?or?visit?http://www.justice.gov/crt/about/osc.?