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Small Business Human Resources Workforce Development Your Questions Answered Success Stories

June 2006 — Vol. 84, No. 5

What you need to know about

Employing foreign-born workers

Be aware of antibias protections, other issues

 

In today’s global economy, having a multicultural workforce can be an asset. But it can also give rise to several management concerns.

For example, “Employers are in a bind: They can’t hire people who don’t have work authorization, but they also can’t discriminate on the basis of citizenship,” says Colin D. Munro II, an attorney with McCarter & English in Stamford who specializes in immigration issues. “When interviewing, an employer can’t ask if someone is a U.S. citizen,” he says. “An employer can’t refuse to hire someone because they aren’t a citizen, if the person has a green card.” (That card identifies someone as a permanent resident who is authorized to work in the U.S.)

Here are questions employers may have regarding foreign-born workers:

Q: Can I give preference to U.S. citizens when hiring?

A: No. The Immigration Reform and Control Act of 1986 (IRCA), which amends the Immigration and Nationality Act of 1952, prohibits employers of four or more from discriminating on the basis of citizenship when hiring, referring for a fee or firing an individual. That prohibition, though, does not apply to “people who don’t have indefinite work authority, including people here on H, L or TN (Treaty NAFTA) temporary visas,” says Munro.

Q: I know it’s against the law to hire an illegal alien. Can I ask job applicants during an interview or on an application form if they’re legally authorized to work here?

A: Yes, as long as you word it that way, says Lynn Atkinson, CBIA employment specialist. “And tell them that if they’re hired, they will have to provide documentation to prove it. But do not ask if someone is a U.S. citizen or where they were born,” she says. Before making a job offer, it’s best to ask only for information that’s relevant to the job requirements, she says. If you ask for other types of information, someone could later claim you used it illegally in making your hiring decision.

Q: How do I verify that someone is authorized to work in this country?

A: An employer must complete a Form I-9 for each new employee hired and must inspect each employee’s documents that establish identity and work eligibility. The form includes a list of acceptable documents. Visit the Human Resources area at cbia.com for more information about verifying employment eligibility.

Q: Can my company be liable if one of our subcontractors uses illegal aliens to perform work for us?

A: You could be. “If a subcontractor hires an illegal alien, the general contractor can be liable,” says Munro, citing as an example a 2003 Wal-Mart case. Federal immigration officials, he says, “raided 50 to 60 Wal-Mart stores, including some in Connecticut, and detained about 245 workers who were employees of a cleaning subcontractor. They also served a warrant on Wal-Mart” claiming that the retailer’s facilities manager who hired the subcontractor knew they were using undocumented workers. Wal-Mart settled for $11 million and agreed to take proactive steps to ensure subcontractors did not use undocumented workers.

Q: Is it true that I shouldn’t even ask for an applicant’s Social Security number because the number can indicate the person was born outside the U.S.?

A: It’s best not to ask for a Social Security number at the pre-employment stage, says CBIA Counsel Mark Soycher, because the number can indicate where a person was born as well as the person’s approximate age — criteria that generally should not influence a hiring decision. Once you hire someone, he says, you can ask for the number, since you need a valid Social Security number for payroll purposes. Employers can verify Social Security numbers on the Social Security Administration's Web site.

Q: Can I require my employees to speak only English at work?

A: Only if you have a bona fide business reason for doing so. “An English-only rule may be used if it is needed to promote the safe or efficient operation of the employer’s business,” states a fact sheet on the Equal Employment Opportunity Commission’s (EEOC’s) Web site (“Questions and Answers for Small Employers About National Origin Discrimination”). Examples would include requiring the use of English when communicating with customers, co-workers or supervisors who only speak English, or to promote safety during an emergency.

Q: If someone has a foreign accent, can I refuse to hire him or her for a job that involves speaking to customers?

A: In some cases. Title VII of the Civil Rights Act prohibits employers of 15 or more from discriminating on the basis of national origin. National origin discrimination includes treating someone differently because of his or her ethnicity or accent. But, according to the EEOC fact sheet, “An employer may consider an employee’s foreign accent if the ... accent materially interferes with the ability to perform job duties.”

Q: Can I prohibit employees from wearing ethnic clothing that Americans might consider odd or objectionable?

A: The EEOC fact sheet notes that “customer or co-worker perceptions about an individual’s ancestry or ethnicity should not be the basis for an employment decision.” However, an employer may establish a dress code that’s applied uniformly to all employees — for example, prohibiting all employees from wearing jeans — even if the code conflicts with an employee’s ethnic beliefs or practices. But if the code conflicts with a worker’s religious practices, the employer must modify the dress code unless that would cause “undue hardship.”

Q: What do I do if an employee who wears a turban for religious reasons applies for a position in an area of our company where hard hats must be used?

A: Safety requirements of the Occupational Safety and Health Administration (OSHA) take precedence over antidiscrimination concerns in this type of situation, says Soycher. If use of a protective helmet is required to fulfill an employer’s obligation to ensure against harm from impact, falling or flying objects, or electrical shocks or burns, an employee who refuses to wear, or cannot wear, a hard hat could lawfully be denied the position.

Q: Are foreign temporary workers covered by the Civil Rights Act protections?

A: Yes. Foreign nationals employed in this country under temporary visas are protected by the Civil Rights Act’s antidiscrimination provisions.

 

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