In recent years the Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices (OSC) has stepped up enforcement against employers who commit violations during the hiring process. \u00a0The primary source of information for the commencement of investigations against employers is a Department of Justice Hotline for workers\u00a0 who believe they have been mistreated by potential employers during the hiring process. Attorneys at the OSC\u00a0follow up on every hotline call, often contacting employers directly to educate them and obtain additional information. \u00a0From its experience on the hotline, the OSC has compiled a list of the most common\u00a0hiring violations it encounters. While many seem obvious, they are worth reviewing with human resources staff, as they continue to reoccur and cost employers significant civil fines and pack pay awards.<\/p>\n
Refusing\u00a0to hire workers who sound or appear foreign:<\/strong>\u00a0Employers have been fined and required to pay back wages\u00a0to non-U.S. citizen workers who were rejected on the basis of employer blanket policies of rejecting applicants who sounded or appeared to be foreign. There are many non-U.S. citizen workers who are authorized to work for any<\/em> employer in the United States, include Legal Permanent Residents, Asylees, \u00a0and Refugees.<\/p>\n Preferring to hire U.S. citizens <\/strong>is also an unfair employment practice,\u00a0\u00a0unless a law, regulation, government contract, or executive order requires that the position be filled by a U.S. citizen. Employers have been prosecuted by the OSC for including \u00a0“citizen only” type language in employment advertising or application materials, as well as for communicating this preference to applicants during the hiring process. \u00a0Fines for this violation have ranged as high as $100,000 in prior years.<\/p>\n Hiring\u00a0non-immigrant visas holders while\u00a0rejecting qualified U.S. citizens and lawful permanent residents who apply for the same jobs<\/strong>. Employers have been subject to investigation and fines during the H-2B application process after they did not hire U.S. citizens and green card holders who applied for the H-2B advertised jobs. \u00a0This type of investigation is even more troublesome as it arises out of an information sharing agreement between the Department of Labor and the Department of Justice. Significant back pay awards to the affected workers are common in this type of case.<\/p>\n Hiring undocumented workers instead of employment-authorized individuals.\u00a0<\/strong>The OSC is vigilant about investigating this type of complaint, which is often presented when a terminated worker complains about being replaced by an undocumented worker. \u00a0The typical remedy is reinstatement and back pay for the affected worker.<\/p>\n No Duty to Sponsor:<\/strong> In spite of all of these admonishments, it is important to remember that employers have no obligation to “sponsor” any worker for immigration status under any circumstances. \u00a0This means that, there is no obligation to file an H-1B petition or green card application on behalf of any employee. Foreign nationals \u00a0who do not have unlimited work authorization to work for any employer in the United States are not protected by anti-discrimination provisions in the Immigration and Nationality Act. \u00a0However, employers should \u00a0still beware of treating various classes of foreign national employees differently. \u00a0Having sponsorship policies in place, which include a time frame for the decision to sponsor as well as specific criteria and manager recommendations, is a best practice that allows employers to have defined criteria \u00a0and time frames to review each individual employee \u00a0for sponsorship consideration.<\/p>\n","protected":false},"excerpt":{"rendered":" In recent years the Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices (OSC) has stepped up enforcement against employers who commit violations during the hiring process. \u00a0The primary source of information for the commencement of investigations against employers is a Department of Justice Hotline for workers\u00a0 who believe they have … <\/p>\n