Immigration Law Has New Hiring Rules
One owner of a small business is still confused by the new Immigration Reform Act, which provides that employers cannot knowingly hire people (after Nov. 6, 1986) who are not authorized to work in the United States.
He asks: If the prospective employee shows the employer the necessary work authorization and identity documents, described in the April 9 law column, is that good enough, or does the boss have a legal duty to independently research the background of each prospective new hire?
Unless an employer has actual knowledge that an alien is not authorized to work, it is sufficient to examine the required documents, as long as they reasonably appear genuine, and sign the proper Immigration and Naturalization Service forms, according to several immigration lawyers. In legal terms, if you comply with the record-keeping and verification procedures, you have an “affirmative defense” against the imposition of sanctions.
“As long as the required documentation appears on its face to be genuine and sufficient to meet the requirements of the verification system, the employer is not required to demand that the employee produce other documentation or proof of employment status,” advises San Francisco lawyer Matthew D. Ross in a recent State Bar publication. (Check with the INS to confirm what specific documents are adequate.)
In fact, demanding too much documentation--for instance, only hiring those with U.S. passports--or using different procedures for different nationalities, will violate the new anti-discrimination section of the law.
Congress created the new legal claim--outlawing discrimination in the hiring or firing of employees because of national origin or citizenship status--out of a fear that “some employers may decide not to hire ‘foreign’-appearing individuals to avoid sanctions,” according to a congressional committee report.
The law prohibits such “unfair immigration-related employment practices” and creates a special office within the Department of Justice to enforce it.
It is already illegal under the 1964 Civil Rights Act to discriminate on the basis of national origin, but that law only applies to firms that have 15 or more employees. The new law applies to companies with more than three employees.
To avoid claims of discrimination, some immigration lawyers advise that an employer should seek to verify work authorization only after the decision to hire is made, but should inform applicants in advance that verification of work authorization will be needed as a condition of employment.
The Immigration Hot Line, (800) 553-2555, operated by the Mexican American Legal Defense and Educational Fund, provides information about the law to both employers and employees.
The hot line is staffed by volunteers. If you are interested in participating, contact Maria Alvarez at (213) 629-2512 for information about training.
Legal Brief
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A ttorney Jeffrey S. Klein, The Times’ senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.
