The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the U.S. Department of Justice announced February 8 that it had reached a settlement agreement with Avant Healthcare Professionals LLC, a healthcare staffing company based in Casselberry, Florida, resolving allegations that the company had engaged in a pattern or practice of citizenship status discrimination by posting discriminatory job advertisements on the internet.
The OSC’s investigation had found that the company’s internet-based job postings contained discriminatory language, impermissibly preferring foreign-trained individuals seeking permanent residence or H-1B visa sponsorship over U.S. workers. The Immigration and Nationality Act (INA) prohibits employers from discriminating on the basis of citizenship or immigration status unless required by law, regulation or government contract. None of those limited exceptions applied. Under the terms of the settlement, Avant agreed to pay $27,750 in civil penalties, to change its internal policies and written procedures to incorporate the INA’s anti-discrimination protections, and to be submit to reporting and compliance monitoring requirements for three years. For link, see http://www.justice.gov/opa/pr/2013/February/13-crt-173.html).
OSC is conducting random checks/audits of online postings, particularly of recruiters, job banks, and staffing companies to ensure compliance with INA anti-discriminatory provisions. The OSC has published “Best Practices for Online Job Postings” which can be found at http://www.justice.gov/crt/about/osc/htm/best_practices.php.
INA’s anti-discrimination provisions also limit the type of questions employers can ask job applicants. The OSC has approved two:
- Are you legally authorized to work in the United States? (Yes or No).
- Will you now or in the future require sponsorship for an employment authoring status or visa?
Employers cannot ask whether a job applicant is a United States citizen before making an offer of employment, unless required by law. Since US citizens, permanent residents, refugees and asylees all are protected from citizenship status discrimination, asking the question pre-offer could expose the employer to charges of discrimination. By the same token, an employer may not ask additional questions about a job applicant’s current visa status.
Generally, a U.S. employer is not obligated to sponsor a foreign national for a work visa. The OSC has advised that an individual who requires employer sponsorship for a visa, such as an H-1B visa holder, is not a protected individual for citizenship status discrimination. However, such individuals are protected against national origin discrimination.
While an employer is not obligated to sponsor a foreign national for a work visa, it may be obligated to do so if someone (such as a hiring manager, division chief, etc.) has promised to provide work visa sponsorship and if the foreign national relies upon that promise to his/her detriment. In an environment of increased worksite enforcement employers should review their recruitment and hiring practices to ensure full compliance with the anti-discrimination immigration provisions pertaining to job advertisements as well permissible pre-hire inquiries in job applications.