Do you hire non-U.S. Citizens? If so, don't be like this company
Assisted living operators should be aware of a settlement agreement reached today by the Justice Department with Masterson Staffing Solutions. The staffing company, based in Minnesota, was found to have violated the Immigration and Nationality Act (INA) by routinely discriminating against non-U.S. citizen workers when checking their permission to work in the United States.
The INA’s anti-discrimination provision prohibits employers from asking for specific documents because of a worker’s citizenship, immigration status or national origin. Employers must allow workers to present whatever acceptable documentation the workers choose and cannot reject valid documentation that reasonably appears to be genuine. Additionally, employers cannot reverify a worker’s permission to work unnecessarily.
“When employees present legally acceptable documentation to demonstrate their permission to work, employers cannot demand different or additional documents because of the employees’ citizenship or immigration status,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division.
Many non-U.S. citizens are eligible for several of the same types of documents to prove their permission to work as U.S. citizens (such as driver’s licenses and unrestricted Social Security cards). Employers must allow workers to present whatever acceptable documentation the workers choose and cannot reject valid documentation that reasonably appears to be genuine. In addition, if a lawful permanent resident provides an unexpired permanent resident card to prove their permission to work, employers must not request new documentation if the permanent resident card later expires. The INA prohibits employers from unnecessarily reverifying a worker’s permission to work.
Assisted living operators should ensure that their policies and practices comply with the INA’s anti-discrimination provision, and that their staff are trained on these provisions. If Masterson Staffing Solutions had this information, they might have avoided a $250,000 penalty and $100,000 fund for backpay. Instead, according to the DOJ, Masterson Staffing routinely required specific documents from newly-hired non-U.S. citizens to prove their permission to work in the US even though Federal law allows workers to choose among legally acceptable documents. For example, the DOJ found that Masterson Staffing required lawful permanent residents to show their Permanent Resident Cards (sometimes known as green cards), and other non-U.S. citizens to show their Employment Authorization Documents (sometimes known as work permits) - rather than giving them the option of providing other documents from the list of approved documents.
The DOJ Civil Rights Division’s Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. There is more information on how employers can avoid discrimination when verifying permission to work on IER’s website. This website contains an easy to use form that walks you through how to properly use the I-9 form and E-Verify.
Look for more weekly blog posts on topics of interest to Assisted Living and Behavioral Health operators. The information herein is intended to be educational and an introduction to the subject matter presented. It is NOT specific legal advice to be relied upon for specific individual circumstances. Contact your own legal professional or reach out to our firm if you would like specific advice on this topic. We welcome topic suggestions! Write to michelle@pinkowskilaw.com to recommend a particular subject for us to explore.