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Employers can be charged with discrimination even without intent to harm
Employers will be open to more discrimination charges based on national origin or citizenship during the employment verification process after a new regulation takes effect Jan. 18.
In the new regulation, the Department of Justice (DOJ) clarified that treating a worker differently when requesting documents during the employment verification process, regardless of whether the intent is to harm or help, will be prohibited. The department revised its rule enforcing the Immigration and Nationality Act's anti-discrimination provision by redefining discrimination as "the act of intentionally treating an individual differently from other individuals because of national origin or citizenship status, regardless of the explanation for such differential treatment, and regardless of whether such treatment is because of animus or hostility."
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"Since 1990, employers have been prohibited from requesting more or different documents or rejecting valid documents during the employment verification process," said Amy Peck, an attorney in the Omaha, Neb., office of Jackson Lewis. That includes asking new hires to provide specific documents from the documents list on the Form I-9, rather than letting each person present the documents of his or her choosing.
"With the newly amended regulations, it is clear that in the I-9 process, including the E-Verify process, an employer can be guilty of prohibited discrimination on the basis of citizenship status or national origin even if it is simply trying to be helpful," Peck said. "In other words, while an employer's motives might be benign or even if the employer is simply trying to help its employees, disparate treatment is prohibited."
Prior to the revision, the DOJ could not effectively pursue charges against employers if hiring practices were considered discriminatory but not carried out with intent to harm.
The final rule also expands the prohibition on discrimination based on national origin or citizenship beyond the I-9 process. The rule will now apply to the E-Verify process and even to onboarding.
"In light of these new rules, all employers should examine their hiring policies, which must absolutely include employment verification protocols, and they should do so with a perspective that [the DOJ] is monitoring activity from recruitment all the way through onboarding," said Kevin Lashus, an attorney with the law firm FisherBroyles in Austin, Texas.
The regulation change could result in more investigations and charges and higher penalties as President-elect Donald Trump's administration is poised to focus on immigration enforcement, and because fines for immigration-related workplace violations were recently increased.
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