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A new addition to California's labor code reinforces protections for workers from discrimination based on immigration status.
The new law, which goes into effect Jan. 1, 2017, makes it unlawful for an employer to request more or different documents than are required under federal law, to refuse to honor documents that reasonably appear to be genuine, or to refuse to honor documents or work authorization based on a specific status. California law already prohibits document abuse if it is retaliatory, but the sponsors of the legislation believed that the hiring process was not covered and that federal protections against document abuse were insufficient.
"The text emphasizes the need for employers to be mindful of the rules regarding what type of documents to accept from foreign employees when verifying employment during the I-9 process," said Ann Cun, founder and managing attorney of Accel Visa Attorneys, an immigration law firm based in San Francisco. "If employment documents appear to be genuine, employers should not request additional documentation. Employment documents should also not be rejected on the type of employment classification or based on an impending future expiration of the employment document."
The California Labor Commissioner may impose a penalty of up to $10,000 per violation.
Document abuse occurs when an employer deters a worker from using documents that are legally acceptable for the Form I-9 and instead specifies which documents he or she must use or requests more documents than are required.
"The legislation arose from concerns raised by public interest groups that employees who presented an employment authorization document (EAD) based on the Deferred Action for Childhood Arrivals (DACA) program were disparately treated during the I-9 process by employers," Cun said.
The California Immigrant Policy Center, a public-policy organization based in Los Angeles, was one of the groups advocating for the law, saying it would create a state remedy for an unfair labor practice that targets immigrant workers.
The law "upholds responsible business practices and ensures employment authorized workers do not face unnecessary, illegal hurdles when seeking employment," said Jon Rodney, the organization's communications manager.
Cun noted that employers may choose not to employ individuals who will require employer-sponsorship of a work visa (such as an H-1B visa) and may even show preference for certain classes of guest workers over other classes of guest workers. But employers must be careful not to discriminate in pre-employment questioning.
"Asking job applicants detailed questions about their immigration or citizenship status may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying for the job due to a misunderstanding about their eligibility for the position," she explained. "Additionally, employers should be mindful of whether or not their hiring practices, in general, might appear to prefer candidates or employees based on the candidates' country of origin."
This could be tricky, Cun noted. Especially when "employers are vetting candidates who have an EAD, since EADs are issued based on numerous classifications ranging from asylee and refugee status, to temporary protected status and DACA. Some individuals who receive an EAD may fall under the protected class of individuals under immigration anti-discrimination laws," she said.
Cun recommended employers carefully evaluate the questions asked during pre-employment screening and consult with an immigration attorney to help design a hiring policy that is in compliance with both federal and California rules.
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