Steps to Protect and Defend your Company from an OSC Investigation

In-House Counsel Summit

Overview

• What is the OSC?

• Types of Discrimination

• Practical impact

• Resources

What is the OSC

• Office of Special Counsel for Immigration-Related Unfair Employment Discrimination

• Created by Immigration Reform and Control Act of 1986 (IRCA)

• Functions include public education, investigation and litigation

Prohibited Conduct Under the INA’s Anti-Discrimination Provision

• Citizenship/Immigration status discrimination

• National origin discrimination

• Document abuse

• Retaliation or Intimidation

8 U.S.C. 1324b

Citizenship/Immigration Status Discrimination

Prohibits:

• Treating individuals who are eligible to work differently because they are, or are not, U.S. citizens, or based on their immigration status

• Preferring certain candidates because of their visa status (including unauthorized workers)

Covered Action:

• Hiring, Firing, and Recruitment or Referral for a Fee of protected persons

Who is Protected from Citizenship Status Discrimination?

• U.S. Citizen or National. • U.S. Lawful Permanent Resident.• Person granted Refugee status in the United

States.• Person granted Asylee status in the United

States.• A Special Agricultural Worker under section 210

or a beneficiary of legalization through an amnesty program under section 245A of the U.S. Immigration and Nationality Act.

Citizenship Status Discrimination Examples

• An employer posts a job on the Internet seeking “U.S. citizens only” because the boss thinks they are most trustworthy. A refugee is refused a job.

• A U.S. citizen sees a job advertised seeking “H-1B visa holders only.” She wants the job but doesn’t apply because she is not an H-1B visa holder.

Practical Impact: Hiring with International Implications

• The bottom line:

• We should avoid any language requiring, recommending or preferring a particular visa category (OPT, H-1B, J-1, F-1).

• We should avoid any language discussing immigration status requirements.

• We should focus on “work authorization” – Our concern is whether the candidate can work and we do not have a preference for a particular visa category or citizenship.

• There is no need for us to include this type of language in job postings.

• Every qualified applicant should be considered for international positions

if they satisfy the job qualification and work authorization criteria.

Prohibited Language in Job Postings

• The following are examples of language that could suggest citizenship status discrimination and should be avoided in job postings:

• “Only US Citizens”• “OPT eligible” • “OPT only” or “OPT preferred”• “Foreign nationals preferred”• “Only U.S. Citizens or Green Card Holders”• “H-1Bs Only”• “H-1B Transfers Only”• “H-1Bs preferred” • “Must have a green card”• “International students preferred”

• US Citizenship or “US Person” is permissible if required by law or federal contract.

Job Postings—Permissible Language:

• For US jobs, employers can confirm work authorization in Job Ad.• i.e., “must be authorized to work in the US.”

• If the position truly requires work authorization in two countries (i.e., US & India), it is permissible to require work authorization in both countries.

• Can include a statement regarding whether ACME will provide visa sponsorship or not.

International Hiring Scenarios

• Hiring in the US as a supplemental/regular with separation before going to permanent offer for employment in home (or foreign) country

• Impermissible – Requiring or Preferring a Particular Visa Category (OPT, H-1B)• Permissible – If we know the permanent assignment is in China and we do not want to pay to

sponsor a Work Permit in China, we could require the person to be “Authorized to work in the US & China”.

• Hiring in the US as a regular then going on an LOA to be hired in home (or foreign) country as a regular or supplemental.

• Impermissible – Requiring that the US candidate have a particular nationality (“must be a Chinese national”)

• Permissible – If we know the immediate assignment is in China and we do not want to pay to sponsor a Work Permit in China, we could require the person to be “authorized to work in China”.

• Hiring in the US as interns/co-op with a potential hiring in home country

• Impermissible – Requiring or preferring that the candidate have OPT in a Job Ad or mentioning OPT eligibility in the Ad.

• Permissible – Job Ad can state that US assignment is temporary and must have work authorization in at least one of the foreign countries where the candidate could be placed.

International Hiring Scenarios (cont’d)

• Positions where hiring unit cannot provide work authorization sponsorship to a candidate:

• Permissible - Ability to work in the U.S. without current/future need for ACME sponsorship.

• Not Permissible - US Citizen or Perm Resident (unless this is required by law or government contract).

• International Student Hiring Advertisements and Campus / Home Country Applicants.

• Permissible - ISHP Flyer includes language: If you are studying abroad and want to return to your “home” country for internship and/ or graduate opportunities, check out opportunities available for you at ACME ACME.com/employment/international students.

• Not Permissible – If you are OPT eligible and interested in returning to your home country . . .

National Origin Discrimination

Prohibits:

• Treating individuals differently because of their place of birth, country of origin, ancestry, native language, accent, or because they are perceived as looking or sounding “foreign”

Covered Action:

• With respect to Hiring, Firing, and Recruitment or Referral for a Fee

• OSC has jurisdiction over employers with 4-14 employees. EEOC has jurisdiction over larger employers

• All authorized employees are protected

Document Abuse

Prohibits:• Discriminating in the employment eligibility verification

process on the basis of citizenship status or national origin

Covered Action: • Requesting more or different documents than are

required to verify employment eligibility OR• Rejecting reasonably genuine-looking documents OR• Specifying certain documents over others • Refusal to hire or discharge is not required • All employers with 3 or more employees are covered• Any authorized worker has standing to make a charge

Document Abuse Examples

Requests more or different documents

• An employer requests naturalization documents from all naturalized U.S. citizens.

• An employer makes all permanent residents present a green card to complete the I-9 form even though they are permitted to present a List B (e.g., license) and List C (e.g., Social Security card) in the alternative.

Document Abuse Examples (cont.)

Demands specific documents from a worker

An employer insists that non-U.S. citizen workers produce a List A document issued by the Department of Homeland Security for Form I-9 purposes but allows U.S. citizen workers to present their choice of documentation to complete the Form I-9.

Retaliation or Intimidation

Protects individuals who:

• file charges with OSC • cooperate with an OSC investigation• contest action that may constitute unfair documentary practices

covered by OSC• assert their own or others’ rights under the INA's anti-

discrimination provision

Protects from what?

• intimidation, threats, coercion, and retaliation

Consequences of Violation

Source of Enforcement action• Charge by individual party with standing

• OSC-initiated “independent” investigation

Civil Penalties• For discrimination: $375 to $16,000

• For Document abuse: $110 - $1,100

Other Remedies• Back Wages

• Reinstatement

• Other injunctions

• OSC or individual may bring suit before administrative court

Recap-Best Practices

• Have a consistent process for all applicants dealing with announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring (and firing).

• Avoid requiring job applicants to have a particular citizenship status, such as U.S. citizenship or permanent residence (unless mandated by law or federal contract).

• Avoid any reference to visa categories in a job announcement as such reference may be misconstrued as preference for applicants on temporary visas.

• Allow all employees to present documents of their choice so long as the documents are acceptable under immigration law.