Gainful employment is available for many newcomers to the US, helping them start a new life and provide a rewarding future for themselves. However, in some unfortunate cases, immigrant workers may be illegally denied the right to work with dignity. If an employer treats you differently from other employees because of your citizenship or immigration status, this is a violation of your civil rights in the United States.
The United States has established laws to protect individuals from being treated differently in the workplace because of the country where they were born, their ancestry, culture, or accent. Therefore, any employment action based upon these things constitutes illegal discrimination. In addition, undocumented workers also have various employment rights to protect them from exploitation.
Acts of national origin discrimination in the workplace
Immigrants are protected from employment discrimination by laws enforced by the Equal Employment Opportunity Commission (EEOC). Employers with 15 or more employees, employment agencies, unions, employer-union apprentice programs, and local, state, and federal agencies must obey these laws. Following are some examples of employment discrimination based on national origin.
- Citizenship status discrimination concerning hiring, firing, and recruitment or referral for a fee by employers with four or more employees
US citizens, US nationals, asylees, refugees, and recent lawful permanent residents are protected from citizenship status discrimination. Citizenship status includes a person’s immigration status. Exceptions: legal permanent residents who do not apply for naturalization within six months of eligibility are not protected from citizenship status discrimination. An employer may restrict hiring to US citizens only if a law, regulation, executive order, or government contract requires the employer to do so.
- National origin discrimination concerning hiring, firing, and recruitment or referral for a fee by employers with four to 14 employees
Employers are not allowed to treat individuals differently in hiring, firing, recruitment, or referral for a fee because of their actual or apparent national origin, including but not limited to their place of birth, country of origin, ancestry, native language, because they are perceived as looking or sounding “foreign,” or any other national origin indicator. All work-authorized individuals are protected from national origin discrimination by small employers under 8 USC § 1324b(a)(1)(A).
- Unfair documentary practices related to verifying the employment eligibility of employees
When verifying a worker’s employment authorization, employers of any size cannot demand more or different documents than necessary, request specific records, or reject reasonably genuine-looking documents because of a worker’s citizenship, immigration status, or national origin. This type of discrimination generally happens during the Form I-9 and E-Verify processes. The part of the law that prohibits this type of discrimination is 8 USC § 1324b(a)(6).
Employers of any size are not allowed to intimidate, threaten, coerce, or retaliate against individuals for filing charges with the Immigrants and Employee Rights Section (IER) which enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), cooperating with an IER investigation, opposing action that may constitute unfair documentary practices or discrimination based upon citizenship status, national origin, or otherwise asserting their rights under the INA’s anti-discrimination provision.
- Discrimination Based on Association with Persons of a Different National Origin Group
The law prohibits discrimination because a person associates with people of a national origin group (prejudice because of attendance at schools or places of worship used by persons of a particular nationality, and discrimination because a person’s or spouse’s name is associated with a national origin group).
- Practices May Have A Negative Effect on Particular National Origin Groups
Some employment practices, such as citizenship or minimum height requirements, may screen out people of a particular national origin. For example, a minimum height requirement for certain jobs, such as police officers or firefighters, may disproportionately screen out people of certain national origins, such as Hispanics and Asians, and would be against the law unless the employer could prove that it is related to the job and needed for the employer to operate safely or efficiently.
- Discrimination Based on Accent
Treating employees differently because they have a foreign accent is lawful only if the accent significantly interferes with being able to do the job. Generally, an employer may only base an employment decision on accent if effective oral communication in English is required to perform job duties. Jobs that may require effective verbal communication in English include teaching, customer service, and telemarketing to English-speaking clients. If a person has an accent but can communicate effectively and be understood in English, they cannot be discriminated against.
- English-speaking only rules
The EEOC has stated that rules requiring employees to speak only English in the workplace violate the law unless the employer can show that they are justified by business necessity. A rule requiring employees to speak only English in the workplace, including breaks and lunchtime, will rarely be justified. Circumstances in which an English-only rule may be justified include communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency. Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of breaking it.
Verifying legal work authorization
The Immigration and Nationality Act requires employers to verify all employees’ identity and employment eligibility, not only immigrants, hired after November 6, 1986, by completing the Employment Eligibility Verification (I-9) Form and reviewing documents showing the employee’s identity and employment authorization. US employers are only permitted to hire workers who have permission from the government to work in this country.
Some common visa types that provide work authorization include:
- TN NAFTA
- GB Temporary Visitor to Guam
- WB Temporary Business Visitor Under Visa Waiver Program
Some employers use E-Verify, a voluntary, internet-based program that allows participating employers to verify the work eligibility of all new employees with the Department of Homeland Security (DHS) and Social Security Administration (SSA). However, using E-verify before the I-9 process is complete and only using it for non-US citizens is considered discriminatory practice and a violation of civil rights.
For example, the Justice Department settled a case in March 2022 with Bianchi Home Care Inc. (Bianchi), a home care provider based in Washington state. The settlement resolves the department’s claims that Bianchi violated the Immigration and Nationality Act (INA) when it discriminated against non-U.S. citizens through E-Verify.
According to the press release, “Based on its investigation, the department determined that Bianchi only used E-Verify to confirm the permission to work of its non-US citizen employees and did not use the program for its US citizen employees. Even though E-Verify found that all of Bianchi’s non-US citizen employees had permission to work, by only subjecting them to E-Verify, Bianchi imposed an additional burden on them in the hiring process because of their citizenship or immigration status. Under the INA and the E-Verify program rules, employers cannot discriminate in their use of E-Verify based on citizenship or immigration status.”
Upon hiring an employee, the employer must complete an Employment Eligibility Verification Form, also known as Form I-9, to verify all workers’ identity and employment eligibility, regardless of citizenship. In addition, employees are required to provide an employer with any combination of documents listed on the Form I-9 to prove their authorization to work in the United States.
Employers must keep the completed I-9 Forms on file for a specific period and show them if requested by Immigration or other government authorities. Employers can make copies of the documents but must do so for all employees, not just a select few.
Employers abuse the document system when they do not allow workers to use any combination of legal documents but specify which documents they must use or require them to submit more documents than are legally required. If an employer refuses to accept legally acceptable documents that appear genuine, the employer has committed document abuse.
In a recent settlement in April 2022 between the US Justice Department and UPS, the American international shipping & receiving and supply chain management company resolved the department’s claims that UPS violated the Immigration and Nationality Act (INA). The suit stated that UPS discriminated against a non-US citizen by requesting the individual present additional documents to prove permission to work after the worker had already provided sufficient proof.
According to the April 2022 press release, “The department’s investigation determined that UPS discriminated against a newly hired lawful permanent resident in Jacksonville, Florida, by asking him for his Permanent Resident Card and “work visa,” to prove his permission to work, even though he had already shown his driver’s license and unrestricted social security card, which were sufficient proof.”
In some cases, employers need to re-verify work authorization if the documents presented during the Form I-9 process have an expiration date. During re-verification, it is up to the employee to decide which acceptable documents to show to prove work authorization. The employer cannot require you to present another work permit with the new expiration date as long as you have other documents establishing your continued work authorization.
It is discriminatory if the employer asks an employee to prove work authorization more than once if the employee has not previously provided documents that may require renewal. The employer may also not require re-verification in the following circumstances:
- When you return after being temporarily laid off for lack of work, as long as it has not been more than three years
- As punishment for being engaged in union-related activities, a strike, or speaking out about work conditions
- After a temporary leave approved by the employer, such as a family or medical leave
- Because of a promotion, demotion, or pay raise
- If you are transferred to a different unit of the same company
- If you are reinstated to your job because of a decision of a labor arbitrator or other decision
Your employer can re-verify work authorization documents for the entire workforce so long as all workers are treated the same. It is against the law for the employer to re-verify work authorization documents of only specific workers if the employer intends to discriminate against those workers because of their immigration status.
Employment rights of undocumented workers
With some exceptions, undocumented workers receive all the same legal rights provided by Federal law as all other workers. Exceptions in most cases involve unemployment insurance and union organization. Employers who have 15 or more employees must follow employment discrimination laws. Employees, regardless of immigration status, receive protection under the following laws:
- Title VII of the Civil Rights Act of 1964. Title VII prohibits employment discrimination based on race, color, sex, religion, and national origin;
- The Equal Pay Act of 1963 (EPA). The EPA prohibits employers from discriminating against employees of the opposite sex performing equal work in one workplace;
- The Age Discrimination in Employment Act of 1967 (ADEA). The ADEA protects individuals age 40 and older from employment discrimination because of age;
- Title I of the Americans with Disabilities Act of 1990 (ADA). Title I prohibits employment discrimination against individuals with disabilities based on their disability.
Right to work
Undocumented workers cannot be fired based on their immigration status. However, under the Immigration Reform and Control Act of 1986 (IRCA), it is illegal for employers to employ undocumented workers knowingly. Employers must terminate, or refuse to hire, an undocumented worker, but they cannot use immigration status as an excuse to fire undocumented workers who make discrimination complaints. Federal discrimination laws cover undocumented workers. The law prohibits employers from retaliating against workers who assert their legal rights. If an employer retaliates against an employee for exercising their right to file a discrimination complaint, the employer breaks the law.
Right to pay for hours worked
Documented workers can sue their employers for pay for hours worked, lost wages (because of being fired or laid off due to discrimination), and a number of other remedies. Undocumented workers may only be entitled to pay for work performed. Undocumented workers are not entitled to be rehired by the discriminatory employer.
Right to Workers’ Compensation
Regardless of immigration status, if you are working in the United States, you may have a right to Workers’ Compensation if you are injured at work. Workers’ Compensation is a program paid by employers that benefits workers injured on the job. If you are a documented immigrant, you are entitled to money for work-related medical bills and wages while you are out of work recovering and job protection when you return from the injury.
Most states have determined that undocumented workers are entitled to compensation benefits. With a few exceptions, the federal government permits the states to administer their own workers’ compensation laws. At least eleven states are still undecided on the issue of workers’ compensation benefits for undocumented workers. In many cases, undocumented workers are only entitled to receive money for work-related medical bills. Different laws apply to seasonal farmworkers and farmworkers on year-round farms.
Right to unionize
Undocumented workers who are not employed by the government have the right to organize a union, elect a union, and collectively bargain with employers under the National Labor Relations Act (NLRA). It also allows you to engage in “concerted activity” to improve working conditions for all employees, even if there is no union yet. Concerted action occurs when two or more employees act, with their employer’s knowledge, to improve working conditions on behalf of all employees or if one employee acts on behalf of others.
Due to your immigration status, if your employer violates the NLRA by discriminating against you because of your union activity or another unlawful labor practice, your recourse may be limited. For example, if unlawfully fired because of union involvement, undocumented workers are not entitled to “backpay” – the wages lost while unemployed because of the firing. Also, you will not be able to get your job back because, as an undocumented worker, you do not have legal work authorization.
Right to unemployment insurance
Unemployment insurance provides periodic payments to eligible unemployed workers through no fault of their own and is looking for work. Under the current state and federal systems, undocumented workers do not qualify for unemployment benefits. The general rule is that workers must have valid work authorization during the base period when they apply for benefits, and throughout the period they are receiving benefits.
What to do if your employment rights have been violated
If your rights have been violated, contact a reputable immigration lawyer, immigrants rights group, or a union representative if you are part of a union. You can also call the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), a part of the US Department of Justice, Civil Rights Division, at 1-800-255-7688 or 1-800-237-2515 to report potential discrimination by an employer.
The services provided by OSC are free and are not part of the US Citizenship and Immigration Services (USCIS). They will not report your status to immigration authorities and can often assist workers by contacting employers to correct discriminatory behavior. The deadline for filing an employment discrimination complaint is 180 days after the discrimination incident.
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