NetJets Services Inc. recently settled with the Department of Justice following claims the Berkshire Hathaway Inc. subsidiary violated the Immigration and Nationality Act by discriminating against certain individuals during the hiring process.
The Columbus, Ohio private aviation services provider was accused of discrimination against work-authorized immigrants, a breach of the INA. The federal law bars employers from discriminating against new hires on the basis of citizenship status. As long as an individual is allowed to work in the U.S. - whether the person is a citizen, a permanent lawful resident or authorized for employment through a visa or similar documentation - hirers should not treat the employee differently from any others.
This means everyone who goes through the Form I-9 process should be allowed to provide whichever List A, B or C documents they choose - as long as they are presented in the right combination. Asking these new hires for specific documents qualifies as discrimination. Whether born citizens of the U.S. or here on a temporary work visa, new hires should be treated the same way. Any departure from standard hiring processes could be taken as discrimination, such as the claims against NetJets.
NetJets allegedly discriminated against work-authorized non-citizens
A DOJ investigation concluded that the private aviation services provider mandated newly hired, work-authorized immigrants to present specific documents. This practice was allegedly in place to ensure that these individuals were eligible for employment in the U.S., but the company did not require the same of born citizens. This ultimately placed excess burden on non-citizens eligible for work in the U.S.
"The settlement agreement calls for NetJets to pay a $41,480 civil penalty."
That's not the only way in which NetJets allegedly violated the INA, either. The DOJ also claimed that the company discriminated against existing employees in addition to new hires. The agency alleged the employer subjected lawful permanent residents to work eligibility re-verification due to their immigration status. Also, naturalized citizens were required to prove their own employment authorization. These individuals were asked to provide more and different documents to confirm their citizenship status to NetJets. All of these practices are prohibited by the anti-discrimination provision of the INA.
"It is the responsibility of each employer to ensure that its human resources staff understand and implement proper hiring practices to avoid violating anti-discrimination laws," Vanita Gupta, principal deputy assistant attorney general and head of the DOJ's Civil Rights Division. "The Civil Rights Division commends NetJets for its cooperation during the investigation and its commitment to implement remedial measures."
The settlement agreement calls for the employer to pay a $41,480 civil penalty. NetJets will also be subjected to monitoring by the DOJ for at least two years. The deal also requires training on the anti-discrimination portion of the INA for the company's human resources staff.
Avoiding DOJ investigations and Form I-9 penalties
Employers are required to treat all new hires the same. Rather than ask for work visas or green cards, HR staff should simply provided newly onboarded candidates with a description of List A, B and C documents and ask them to bring in the correct combination of those items for employment eligibility verification. This policy will keep the company safe from allegations of hiring discrimination. In addition, staff should be educated on Form I-9 - and if necessary, E-Verify - processes to ensure that the company complies with requirements.
Failing to comply with the INA or Form I-9 requirements can result in civil penalties, mandatory back pay funds and other punishments. For this reason, it is important to always ensure staff is well-trained on hiring processes and job candidates are treated the same as they're brought into the company.