Immigrants & Employment in the US: Key Violations to Know
In 2019, foreign-born persons comprised 17.4% of the US labor force, totaling 28.4 million. Foreign-born persons include legally-admitted immigrants, refugees, temporary residents such as students and temporary workers, and undocumented immigrants. With this fact in mind, it is not surprising that employment violations involving immigrants are quite common in the US. This does not mean all violations are intentional, rather, many occur due to a lack of training and education.
As such, our Houston employment lawyers are here to explain a significant federal law concerning unfair immigration-related employment practices, codified in 8 USC §1324b, which you can learn about below:
In circumstances involving the hiring, recruitment, or fee-based referral of a person for employment or discharging a person from employment, it is an unfair immigration-related employment practice for a person to discriminate against any individual (other than an unauthorized alien) for the following reasons:
- The individual's national origin
- Because of the individual's citizenship status (if they are protected)
To elaborate, a protected individual is a citizen or national of the US or an alien who is lawfully admitted for permanent residence, granted the status of an alien lawfully admitted for temporary residence, admitted as a refugee, or granted asylum. Certain exceptions apply. However, the statutes above do not apply to:
- Companies with three or fewer employees
- Discrimination based on an individual's national origin if the discrimination is covered under section 703 of the Civil Rights Act of 1964
- Discrimination because of citizenship status that is otherwise required in order to comply with state or federal laws, regulations, or executive orders
Unfair immigration-related practices outlined in 8 USC §1324b also include:
- Intimidating, threatening, coercing, or retaliating against any individual to interfere with any right or privilege they have, or because the individual intends to file or has filed a charge or a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing
- Requesting more or different documents than required, or refusing to honor documents that reasonably appear to be genuine
It is not an unfair immigration-related practice to prefer to hire, recruit, or refer a citizen or national of the US over an alien if the two individuals are equally qualified. With this information in mind, a person affected by one or more unfair immigration-related employment practices may file a charge with the Special Counsel, which will notify the accused person or entity within 10 days. The Special Counsel will then investigate the charge and determine whether or not:
- there is reasonable cause to believe the allegation is true; and
- whether or not to bring a complaint regarding a charge before an administrative law judge.
From there, the administrative law judge will serve the accused person or entity a copy of the complaint and notice of hearing, allowing the accused to file an answer to the complaint and give testimony at the hearing. Both the accused and complainants must be mindful that a judge may subpoena the production of evidence and/or witnesses at any place or hearing.
Lastly, after reviewing the evidence and hearing testimony, the judge will issue a final order. If the judge finds that the accused engaged in the unfair immigration-related employment practice they were charged with, the judge will issue an order requiring the accused person or entity to do the following, which includes but is not limited to:
- Cease and desist from such unfair immigration-related employment practice
- Hire the adversely affected individual(s) without back pay
- Pay a civil penalty of $250 to $2,000 for each individual discriminated against
- Post notices to employees about their rights concerning unfair immigration-related employment practices and employers' obligations
- Educate all personnel involved in hiring and complying with immigration-related employment practices
- Remove a false performance review or warning from an affected employee's personnel file, if applicable
- Lift any restrictions on an affected employee’s assignments, work shifts, or movements
Questions? You’ve Come to the Right Place.
Our Houston employment attorneys are well-aware of the fact that employers and recruiters may be unfamiliar with employment practice violations involving immigrants, and likely have questions that require answers. That’s what we’re here for.
As such, please do not hesitate to contact us online or at (713) 352-3433 to learn more.