Employers could get sued for following the law

Employers could get sued for following the law

A new federal guidance for employers illustrates the Catch-22 situation that immigration law creates for them: Businesses cannot employ anybody who is not legally residing in the U.S., but trying to determine if any of their employees are not legal residents can result in the business facing a federal discrimination lawsuit.

In other words, it can be illegal for an employer to try to find out if it is complying with the law.

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The new guidance says, among other prohibitions, that employers cannot inquire on the basis of a worker's "citizen status or national origin." Nor can they request specific documents or act based on tips. They cannot use the government's E-Verify system after the worker is hired. Even if they do find faked documentation, they cannot necessarily act on it.
"The message is, 'Think before you audit — Is this really something you want to undertake?' Particularly in-house, because it is fraught with landmines," said Beth Milito, senior executive counsel for the National Federation of Independent Business.
The problem arises from the fact that the Immigration Reform and Control Act specifically prohibits hiring people who aren't in the country legally.

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Employers could get sued for following the law | Washington Examiner

I wonder if this guidance is activism and if it is legal. It seems like someone is trying to re-write a law or if two laws actually conflict with each other.

NonoBadDog said:

Employers could get sued for following the law

Employers could get sued for following the law | Washington Examiner

I wonder if this guidance is activism and if it is legal. It seems like someone is trying to re-write a law or if two laws actually conflict with each other.

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No offense but it's impossible to tell from that article, which was a jumbled mess. I looked and could find no link to anything, so the poor writing and lack of support makes it impossible to buy the story's conclusions.

JasperL said:

No offense but it's impossible to tell from that article, which was a jumbled mess. I looked and could find no link to anything, so the poor writing and lack of support makes it impossible to buy the story's conclusions.

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Well, then, don't. I understood it without any problem. There is always google.

NonoBadDog said:

Well, then, don't. I understood it without any problem. There is always google.

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Did you see other articles on it?

joG said:

Did you see other articles on it?

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I didn't look. I am reading other threads. Sorry. You could google it if you are curious about other articles.

NonoBadDog said:

Well, then, don't. I understood it without any problem. There is always google.

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Good idea, and as I suspected it's a BS article. We can start with what you quoted.

https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf

The new guidance says, among other prohibitions, that employers cannot inquire on the basis of a worker's "citizen status or national origin."

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Fair enough, because citizenship and national origin are not relevant to legal work status. For purpose of employment, what matters is if they're here legally and are authorized to work. Matters not if they're citizens or that they're from another country. Discriminating based on those factors is obviously a problem.

Nor can they request specific documents

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True but misleading. The employer is required to verify eligibility and I-9s require acceptable documents, there is a list of them. In many cases an employee can produce more than one document to demonstrate work eligibility. The employer must get a document off the approved list but cannot specify which one, such as a U.S. birth certificate.

or act based on tips.

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False. See page 6 of the guidance - last page (it's a pdf and I cannot get it to copy and paste)

They cannot use the government's E-Verify system after the worker is hired.

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They can if they have been using E-Verify. The purpose of prohibiting using E-Verify when it wasn't used in the hiring process is likely the risk that it's used arbitrarily, only against certain employees. Bottom line is if you use E-Verify regularly, there is no problem using E-Verify after an employee is hired. See page 4.

Even if they do find faked documentation, they cannot necessarily act on it.

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Well, they can. False again. See pages 3 and 4. I guess the wiggle word is "necessarily" but who the hell knows in what circumstances they cannot act. The guidelines make it clear that suspected fake docs can be acted on.

No wonder the article didn't link to the documents. It was a bigger mess and a lot more dishonest than I thought.... It's always a red flag when an article about something where the details REALLY matter quotes little from the source docs and doesn't provide a link to the source docs.

JasperL said:

Good idea, and as I suspected it's a BS article. We can start with what you quoted.

https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf



Fair enough, because citizenship and national origin are not relevant to legal work status. For purpose of employment, what matters is if they're here legally and are authorized to work. Matters not if they're citizens or that they're from another country. Discriminating based on those factors is obviously a problem.



True but misleading. The employer is required to verify eligibility and I-9s require acceptable documents, there is a list of them. In many cases an employee can produce more than one document to demonstrate work eligibility. The employer must get a document off the approved list but cannot specify which one, such as a U.S. birth certificate.



False. See page 6 of the guidance - last page (it's a pdf and I cannot get it to copy and paste)



They can if they have been using E-Verify. The purpose of prohibiting using E-Verify when it wasn't used in the hiring process is likely the risk that it's used arbitrarily, only against certain employees. Bottom line is if you use E-Verify regularly, there is no problem using E-Verify after an employee is hired. See page 4.



Well, they can. False again. See pages 3 and 4. I guess the wiggle word is "necessarily" but who the hell knows in what circumstances they cannot act. The guidelines make it clear that suspected fake docs can be acted on.

No wonder the article didn't link to the documents. It was a bigger mess and a lot more dishonest than I thought.... It's always a red flag when an article about something where the details REALLY matter quotes little from the source docs and doesn't provide a link to the source docs.

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Here is the link for the letter. I didn't read much of it. You might be right:
Departments of Justice and Homeland Security Announce Joint Guidance to Employers on Internal Form I-9 Audits | OPA | Department of Justice

You might also be wrong:
http://www.justice.gov/crt/file/798276/download

Internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee or employees for any reason. An employer should also consider whether the audit is or could be perceived to be discriminatory or retaliatory based on its timing, scope or selective nature.

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That kind of negates the reason for doing an audit since the employer could be sued for doing the audit based on "citizenship or status" which is the reason for doing an I9 audit in the first place. The wording is clear as mud so who knows.

NonoBadDog said:

Here is the link for the letter. I didn't read much of it. You might be right:
Departments of Justice and Homeland Security Announce Joint Guidance to Employers on Internal Form I-9 Audits | OPA | Department of Justice

You might also be wrong:
http://www.justice.gov/crt/file/798276/download


That kind of negates the reason for doing an audit since the employer could be sued for doing the audit based on "citizenship or status" which is the reason for doing an I9 audit in the first place. The wording is clear as mud so who knows.

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This is a conflict in the federal government that has been brewing for a long time between the EEOC (can't ask if they are legally here) and ICE (you better not hire illegals).

And, yes, you are correct that someone (the Administration) is trying to change a few laws in this instance.

NonoBadDog said:

Here is the link for the letter. I didn't read much of it. You might be right:
Departments of Justice and Homeland Security Announce Joint Guidance to Employers on Internal Form I-9 Audits | OPA | Department of Justice

You might also be wrong:
http://www.justice.gov/crt/file/798276/download

That kind of negates the reason for doing an audit since the employer could be sued for doing the audit based on "citizenship or status" which is the reason for doing an I9 audit in the first place. The wording is clear as mud so who knows.

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Well, there isn't any doubt the article was a POS - you quoted 5 statements, and 5 statements were false or misleading. So Washington Examiner is pretty pathetic, but we all knew that already.

Second, an I-9 audit is about one thing - is the person eligible to WORK in the U.S., and that has nothing to do with "citizenship status or national origin." I already explained that in the previous post but you ignored it and repeated the same nonsense.

Beaudreaux said:

This is a conflict in the federal government that has been brewing for a long time between the EEOC (can't ask if they are legally here) and ICE (you better not hire illegals).

And, yes, you are correct that someone (the Administration) is trying to change a few laws in this instance.

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Well, that's just false, and the linked guidelines prove it. You quoted them, maybe follow the links, read them, and you won't make obviously wrong statements.

This isn't hard. Employers must ask, "Are you authorized to work in the U.S." They're not allowed to discriminate based on national origin or whether you're a citizen or not. You'll notice citizenship is different than work eligibility.

JasperL said:

Well, that's just false, and the linked guidelines prove it. You quoted them, maybe follow the links, read them, and you won't make obviously wrong statements.

This isn't hard. Employers must ask, "Are you authorized to work in the U.S." They're not allowed to discriminate based on national origin or whether you're a citizen or not. You'll notice citizenship is different than work eligibility.

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Which one of the links was from the EEOC?

We have way too much government. I assume I break laws I've never heard of every day. What a mess.

JasperL said:

Good idea, and as I suspected it's a BS article. We can start with what you quoted.

https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf



Fair enough, because citizenship and national origin are not relevant to legal work status. For purpose of employment, what matters is if they're here legally and are authorized to work. Matters not if they're citizens or that they're from another country. Discriminating based on those factors is obviously a problem.



True but misleading. The employer is required to verify eligibility and I-9s require acceptable documents, there is a list of them. In many cases an employee can produce more than one document to demonstrate work eligibility. The employer must get a document off the approved list but cannot specify which one, such as a U.S. birth certificate.



False. See page 6 of the guidance - last page (it's a pdf and I cannot get it to copy and paste)



They can if they have been using E-Verify. The purpose of prohibiting using E-Verify when it wasn't used in the hiring process is likely the risk that it's used arbitrarily, only against certain employees. Bottom line is if you use E-Verify regularly, there is no problem using E-Verify after an employee is hired. See page 4.



Well, they can. False again. See pages 3 and 4. I guess the wiggle word is "necessarily" but who the hell knows in what circumstances they cannot act. The guidelines make it clear that suspected fake docs can be acted on.

No wonder the article didn't link to the documents. It was a bigger mess and a lot more dishonest than I thought.... It's always a red flag when an article about something where the details REALLY matter quotes little from the source docs and doesn't provide a link to the source docs.

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thanks for addressing the misrepresentation

Beaudreaux said:

Which one of the links was from the EEOC?

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LOL. The guidelines were coordinated in part through EEOC and I'm 100% sure you can't quote any EEOC guideline, rule, whatever that supports your statement, "EEOC (can't ask if they are legally here)." Employers are required to verify that an employee is eligible to work in the U.S. If they are eligible to work, they are "legally here."

But if you think I'm wrong, then cite the EEOC rule or guideline, with a link, please. You made the statement so it's up to you to back it up. Here's a good place for you to start: Facts About Employment Rights of Immigrants Under Federal Anti-Discrimination Laws

JasperL said:

LOL. The guidelines were coordinated in part through EEOC and I'm 100% sure you can't quote any EEOC guideline, rule, whatever that supports your statement, "EEOC (can't ask if they are legally here)." Employers are required to verify that an employee is eligible to work in the U.S. If they are eligible to work, they are "legally here."

But if you think I'm wrong, then cite the EEOC rule or guideline, with a link, please. You made the statement so it's up to you to back it up. Here's a good place for you to start: Facts About Employment Rights of Immigrants Under Federal Anti-Discrimination Laws

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Google is your friend. A simple search is all I had to do. However, I have seen this for years, since the Obama Administration has been, through the EEOC, bastardizing the IRCA to protect illegal immigrants and their jobs. You can laugh all you want, but facts are a hard thing to thwart.

Discrimination based on citizenship is expressly prohibited by the Immigration Reform and Control Act of 1986, commonly referred to as IRCA. IRCA also prohibits discrimination on the basis of national origin by employers with between four and fourteen employees.

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BTW, the link above is the same one you gave second.

Beaudreaux said:

Google is your friend. A simple search is all I had to do. However, I have seen this for years, since the Obama Administration has been, through the EEOC, bastardizing the IRCA to protect illegal immigrants and their jobs. You can laugh all you want, but facts are a hard thing to thwart.

BTW, the link above is the same one you gave second.

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What's so hard about this?

1) Employers are required to verify WORK ELIGIBILITY.
2) They are prohibited from discriminating based on national origin or citizenship status.

Those are different things. You said employers cannot ask if a person is "legally here." That is wrong - if a person is eligible to work, and employers are required to verify that, then that person is "legally here." Your link does nothing to refute that statement. If you think it does, quote the language, not just the link.

Surely you understand that we have millions of LEGAL RESIDENTS, who are 1) eligible to work, and therefore 'legally here', but 2) not citizens. One example of such a person is Adele. You might have heard of her, she's a singer.

Millions of individuals have work permits (H-2A visas), so they are also 1) here legally and are eligible to work, but 2) not citizens. They pick a lot of your food on U.S. farms.

And your so-called facts are quite easy to 'thwart'....:roll:

JasperL said:

What's so hard about this?

1) Employers are required to verify WORK ELIGIBILITY.
2) They are prohibited from discriminating based on national origin or citizenship status.

Those are different things. You said employers cannot ask if a person is "legally here." That is wrong - if a person is eligible to work, and employers are required to verify that, then that person is "legally here." Your link does nothing to refute that statement. If you think it does, quote the language, not just the link.

Surely you understand that we have millions of LEGAL RESIDENTS, who are 1) eligible to work, and therefore 'legally here', but 2) not citizens. One example of such a person is Adele. You might have heard of her, she's a singer.

Millions of individuals have work permits (H-2A visas), so they are also 1) here legally and are eligible to work, but 2) not citizens. They pick a lot of your food on U.S. farms.

And your so-called facts are quite easy to 'thwart'....:roll:

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Being sued by applicants for ... never mind. We're running around the same stump in different directions, and frankly Scarlett...

Beaudreaux said:

This is a conflict in the federal government that has been brewing for a long time between the EEOC (can't ask if they are legally here) and ICE (you better not hire illegals).

And, yes, you are correct that someone (the Administration) is trying to change a few laws in this instance.

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Yep, I agree with you that this conflict between the two exists. As an employer, I've had to negotiate it regularly, but it can be done, and it predates this administration. I do wish that there was a clearer path though for employers to follow the law.

Beaudreaux said:

Being sued by applicants for ... never mind. We're running around the same stump in different directions, and frankly Scarlett...

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Well, no we're actually not - your statements weren't correct.

On another thread, you claim that "finding, interpreting, and consulting on how to comply with the USC" is your job. If that's true, you know you were peddling nonsense, and a bad reading of the new guidelines and immigration law. Or you just didn't read the rules/guidelines but made a confident but easily proved BS assertion anyway. Failing to distinguish between "citizen" versus "legal resident and eligible to work" is a big miss for someone who claims expertise in interpreting federal law.

Montecresto said:

Yep, I agree with you that this conflict between the two exists. As an employer, I've had to negotiate it regularly, but it can be done, and it predates this administration. I do wish that there was a clearer path though for employers to follow the law.

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Exactly Monte. Those here that are arguing against the fact that this exists are obviously not employers that have dealt with these issues up close and personal. I agree it predates this Administration and basically said so earlier. This one, however, has made it even harder to figure out and more likely an employer could get sued given their EO's protecting illegal immigrants.

Beaudreaux said:

Exactly Monte. Those here that are arguing against the fact that this exists are obviously not employers that have dealt with these issues up close and personal. I agree it predates this Administration and basically said so earlier. This one, however, has made it even harder to figure out and more likely an employer could get sued given their EO's protecting illegal immigrants.

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Great. I've hired as recently as 8 weeks ago, I hope I haven't erred.

JasperL said:

Well, no we're actually not - your statements weren't correct.

On another thread, you claim that "finding, interpreting, and consulting on how to comply with the USC" is your job. If that's true, you know you were peddling nonsense, and a bad reading of the new guidelines and immigration law. Or you just didn't read the rules/guidelines but made a confident but easily proved BS assertion anyway. Failing to distinguish between "citizen" versus "legal resident and eligible to work" is a big miss for someone who claims expertise in interpreting federal law.

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You just don't get it. An employer can get sued by potential employees privately in civil court and potentially via the EEOC based on the law and the EO's and the conflicts that exist. You keep denying it, that's your right. I will continue to caution my clients regarding their potential exposure to legal liability created by the bifurcation and contradictions inherent to current government guidance, regulations, and Executive Orders.

Montecresto said:

Yep, I agree with you that this conflict between the two exists. As an employer, I've had to negotiate it regularly, but it can be done, and it predates this administration. I do wish that there was a clearer path though for employers to follow the law.

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Where is the conflict? You're required to verify work eligibility, aka "if they are legally here." You can't discriminate based on national origin or citizenship status.

These are different things.

1) Eligible to work
2) Black/hispanic/Muslim/Jew/non-citizen.

You're required to "discriminate" on 1), prohibited from discriminating based on 2).

I don't doubt that complying with 2) probably requires some BS compliance efforts in some cases, but that's not what you're saying.

Montecresto said:

Great. I've hired as recently as 8 weeks ago, I hope I haven't erred.

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You should be fine, given my knowledge of how you operate and think, which is the most important thing that guides an employer in first place. Plus, the EEOC is currently keeping busy with the NLRB on other issues that they are both about to change.

Beaudreaux said:

You just don't get it. An employer can get sued by potential employees privately in civil court and potentially via the EEOC based on the law and the EO's and the conflicts that exist. You keep denying it, that's your right. I will continue to caution my clients regarding their potential exposure to legal liability created by the bifurcation and contradictions inherent to current government guidance, regulations, and Executive Orders.

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You said your expertise was in following the law, so quote the law, the reg, the conflicting EOs. At this point you haven't shown any conflict, and seem unable to distinguish between non-citizen eligible to work and and illegals.