Companies are often fined these days due to issues with hiring lawful permanent residents or temporary visa-holders in a compliant manner by placing extra burdens on these individuals. However, sometimes employers actually prefer work-authorized non-citizens. This is discrimination against citizens, though, and can also lead to investigations, lawsuits and monetary penalties.
Whiz International L.L.C., a New Jersey-based IT staffing agency, for example, was fined for retaliating against an employee who was uncomfortable with the company's preference for temporary visa-holders. Employers cannot lean one way or the other, but instead, must treat all individuals authorized to work in the U.S. the same way. Whiz was fined $1,000 - a relatively small penalty in terms of discriminatory hiring practices and related violations - but was also required to pay the charging party $20,780. Often fines may appear small, but when combined with back pay funds, the total punishments can turn out very costly for employers. Both hiring discrimination, as well as retaliation against employees who are concerned about such practices, can result in large penalties.
"Whiz was required to pay the charging party $20,780."
"Retaliation against employees for speaking up against potential civil rights violations will never be tolerated," Thomas Perez, assistant attorney general for the DOJ's Civil Rights Division, said in a statement. "The Civil Rights Division is committed to ensuring that U.S. citizens and other work-authorized individuals are not discriminatorily denied work opportunities."
Employers cannot show preference for individuals of a certain citizenship status
Soon after the charging party was hired, she was asked to perform recruitment duties, and to keep a list of the individuals she had contacted. The Microsoft Excel spreadsheet created for recruitment purposes required her to keep track of potential new hires' names, skill sets and citizenship status. Not long after she received instruction to begin tracking individuals she recruited, she was sent an email that told her to focus on people eligible for optional practical training. Later, the defendant instructed her to look for individuals with temporary work visas. He preferred these people because they would be tied to the company and it would be more difficult for them to obtain employment elsewhere than it would be for citizens.
The charging party, however, was not comfortable with the instruction to focus on temporary visa-holders. She was concerned that Whiz's hiring practices were excluding lawful permanent residents and citizens. About three weeks after she expressed concern with the company's preference for temporary visa holders, the defendant fired her. The defendant sent her two letters following this, neither expressing a reason for her termination.
Settlement requirements for Whiz
As part of the settlement agreement Whiz came to with the DOJ, the company will be required to pay the former employee as well as a civil penalty. In addition to the monetary requirements, though, Whiz's hiring practices will be subject to DOJ monitoring for three years.
Employers are typically charged with mistreating temporary visa-holders or lawful permanent residents. However, sometimes, as in the case against Whiz, the charges can go the other way, with companies discriminating against citizens. There should be no preference for who is hired, as long as individuals are authorized to work in the U.S. In addition, when someone is hired, regardless of his or her citizenship status, that person should be treated the same as everyone else. That means allowing the person to bring whichever List A, B or C documents he or she chooses for the Form I-9 process. Requiring a temporary visa-holder to bring in his or her visa, or a lawful permanent resident to provide his or her green card is considered an additional burden.