In September, Cumberland Staffing Inc., a Tennessee staffing company, reached a $175,000 settlement agreement with the Department of Justice following an investigation into alleged Immigration and Nationality Act violations.
Cumberland, which does business as AtWork Cumberland Staffing, was investigated after a Tennessee resident alerted the DOJ to an ACS job posting referencing a U.S. birth certificate requirement. The DOJ determined an ACS location in Cookeville, Tennessee, published job descriptions asking applicants to machine operator positions at a client company to bring U.S. birth certificates. The job advertisement was posted to numerous job search engine websites from December 2015 to February 2016.
The INA bars employers from discriminating during the hiring process
The law disallows employers from placing excess burdens on job applicants due to citizenship status or national origin. For example, if the employer asks a permanent lawful resident for his or her green card, the act would constitute a violation of the discrimination provision of the INA. In addition, barring individuals from employment opportunities because of their citizenship status is also a breach of the act. ACS's job postings asking applicants to certain positions to bring their birth certificates falls squarely in that category.
"Staffing agencies, which are in the business of making employment opportunities available to job seekers, cannot create unlawful and discriminatory employment barriers," Vanita Gupta, principal deputy assistant attorney general and head of the Justice Department's Civil Rights Division, said. "The department commends ACS for its cooperation during the investigation and its willingness to address the situation."
"The settlement requires ACS to pay a $175,000 civil penalty."
The settlement requires ACS to pay a $175,000 civil penalty. In addition, it mandates the staffing agency to remove all document requirements from its job advertisements except where required by law, - the INA allows these prohibitive measures under lawful exceptions - to train employees on compliant hiring and to have legal experts or trained staff review job postings before publishing.
Avoiding discrimination fines
Employers should regularly review hiring procedures to ensure there are no obstacles to employment for any individual authorized to work in the U.S., regardless of citizenship status. Staffing agencies, especially, are often investigated and end up settling with the DOJ over INA violation allegations. San Diego staffing agency TEG Staffing Inc. reached an agreement with the department in August requiring the company to pay $175,000 in civil penalties. Before that, in June, Powerstaffing Inc., a New Jersey staffing agency, settled with the DOJ to the tune of $153,000 in fines.
In addition to ensuring staff doesn't ask new hires for specific documents, it is important to ensure the Form I-9 is completed correctly. Along with INA violations, noncompliant Form I-9s are a frequent charge in government settlements with employers. Companies should maintain proper hiring practices throughout the onboarding process, which includes E-Verify cases if the federal background verification system is used. Taking prohibitive steps to ensure compliance will help employers avoid the sort of fines ACS and other companies have paid over hiring violations.