As the United States enters an intense season of attracting and processing new hires, it is critical for businesses to be vigilant in observing anti-discrimination hiring laws. Some employers wrongfully believe that such laws are geared more toward employers that sponsor visas to hire foreign workers, but this is not accurate. Anti-discrimination laws apply to every single business operating in the U.S.
A reminder to abide by anti-discrimination hiring laws is not just a warning to employers who are being purposefully discriminatory, but it is also for those employers who may unintentionally be engaging in those practices due to:
- Ignorance About Lawful Hiring Protocols
- Compliance Fears Over Complicated Cases
- Work Visa Ban Confusion
Protocol Ignorance Can Yield Job Rejections for Some Individuals
While the Form I-9 is a staple for employers to verify a new hire’s identity and work authorization, many view it as anything but simple or straightforward due to the number of steps it requires and the specific rules regarding each section. For those employers who are not adequately trained in the process, this ignorance could lead to the unnecessary rejection of some job applicants.
Protocol ignorance can manifest itself in a number of ways, with some of the most common instances being examples such as the following:
- Denial of a job applicant with valid work authorization documentation because they will require a visa sponsorship at a later date
- Mismatch of a social security number that is not investigated with due diligence before firing an individual
- Wrongful request of a lawful permanent resident to present a green card for the Form I-9
- Attempt to reverify an employee’s green card as part of the Form I-9 process
- Use of misleading language such as “U.S. citizen only” during employee recruitment
In many of the above cases, it is possible that the employer is making a mistake for the sole reason that they did not receive accurate training or instruction regarding proper hiring protocols. Unfortunately, even innocent mistakes can be costly in terms of the consequences of non-compliance.
Compliance Fears Could Be a Cause of Discriminatory Practices
The process of hiring employees can be intimidating with the Form I-9, review of key identification documents, and sometimes E-Verify. With so many checkpoints, some employers are hesitant to hire individuals who have the right to work in the U.S. if they are not citizens simply because of the potential risk of handling the procedure in the wrong way and it negatively affecting their compliance status. Afterall, hiring undocumented immigrants can be a substantial compliance violation yielding punitive fines and criminal penalties.
This said, federal immigration anti-discrimination provisions ban:
- the unjust rejection of valid Form I-9 documents
- denying individuals employment due to their citizenship or immigration status
Employers must abide by these rules whether sponsoring U.S. visa holders or not.
Work Visa Ban Confusion May Play a Role
On March 31, 2021 the temporary work visa ban on the issuance of new H1B, H2B, H4, J1, and L1 visas ended. An employer who does not make a concerted effort to stay up to date on current legislation regarding legal hiring practices may not be aware about the ban’s expiration. This could result in an employer turning away a work visa which is now considered valid making it a possible case of unintentional anti-discrimination.
Employers should note that federal laws regarding the hiring process can change periodically. This requires that companies stay abreast of the most current legislation to ensure they are conducting practices that boost their compliance rather than taking away from it.
Help for Employers Regarding Anti-Discrimination Hiring Laws
To better equip employers to stay compliant with anti-discrimination hiring laws, it is recommended they form a partnership with an employment verification attorney that also offers services such as digital I-9 compliance software. By enlisting the help of an organization well versed in I-9 compliance, E-Verify, and various compliance solutions, an employer can be better positioned to have best practices when it comes to anti-discrimination hiring laws.
Digital I-9 compliance software can be incorporated into a company’s on-boarding workflow tools to streamline the process and minimize the opportunity for unintentional errors and to create an exceptional new hire experience. Some of the features of digital I-9 compliance software include:
- Error alerts. The software is designed to help flag common mistakes such as incomplete or blank fields, as well as missing signatures.
- Deadline alerts. If an employee has a work authorization expiration coming up, the system will notify an employer in advance so there is time to rectify the situation before it becomes a compliance issue.
- Oversight. The software helps track the process of verification and reverification, as well as document retention.
- Electronic Storage. 24/7 access to all of the company’s I-9 forms, saving space and providing greater access flexibility
- Centralized reports. This feature allows a company to better track their overall compliance at any given moment rather than waiting for problems to appear during a crucial audit.
If you are an employer and have questions regarding anti-discrimination hiring laws, reach out to a service provider who understands the complexities of Form I-9 and E-Verify compliance and the laws pertaining to the process.
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