Know the Rights of Foreign Employees

Posted on Wednesday, March 06, 2019

With immigration to the U.S. on the rise in recent years, your workplace is generally more diverse. Immigrants can fill a lot of positions in your company at both the professional and semi-skilled levels.

However, hiring foreign-born employees can present some complex issues and result in complaints to the Equal Employment Opportunity Commission (EEOC) of illegal bias. In fact, EEOC and state officials say many workplace discrimination cases go unreported and they are urging victims to come forward.

It's a good idea to seek professional advice. In the meantime, here are a few things you should know:

Federal law prohibits you from basing hiring decisions on a person's citizenship status. Don't ask "foreign-sounding" applicants if they are U.S. citizens. Such questions can be fodder for costly discrimination complaints. However, you are entitled to ask all applicants to prove they are authorized to work in this country.
Non-U.S.citizens have the same workplace rights and privileges as U.S. citizens. For instance, they are protected by the Family Medical Leave Act (FMLA), the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act(ADA).
Cultural differences between immigrant and native groups -- or even between two immigrant groups - can create tension in your firm. Make sure that no particular group behaves in a way that makes another group uncomfortable.

Basically, immigrant employment issues are a lot easier to handle if you develop policies and standards that govern workplace behavior.

Schedule some training for your managers and supervisors. A little foresight can protect your workforce and save you a bundle in legal fees down the road.

Open a World of Possibilities

Companies incur stiff penalties when they knowingly hire someone who can't legally work in the U.S., so many overcompensate by refusing to hire anyone who looks or sounds "foreign." Federal regulators don't much care for that approach either.

Your best bet is to understand state and federal anti-discrimination laws. You'll not only stay out of trouble, but you'll gain access to qualified applicants that your competitors might not consider.

It's always a good idea to seek legal advice when considering non-U.S. citizens for employment, but here are a few pointers:

Base your decision on whether applicants are authorized to work - not on their citizenship or immigration status. Even refugees and asylum seekers can be eligible for employment. In fact, it's often illegal to ask applicants to disclose their immigration status.

Check the expiration date on an applicant's employment documents. If the authorization is about to expire, don't panic. Employment authorization may be renewable.

Accept any document or combination of documents listed on the back of the federal Form I-9, which establishes an applicant's identity and employment eligibility. Don't ask for additional documents. You also can't specify the ones you want.

Keep in mind that all applicants - not just foreigners - should complete Form I-9. Public-sector employers and most government contractors also need to ask applicants to complete the form. Check with your attorney.

Ask the same interview questions of all applicants so you don't appear to favor one group over another.

Posted in Tax Topics For Individuals

Disclaimer: The information contained in Dulin, Ward & DeWald’s blog is provided for general educational purposes only and should not be construed as financial or legal advice on any subject matter. Before taking any action based on this information, we strongly encourage you to consult competent legal, accounting or other professional advice about your specific situation. Questions on blog posts may be submitted to your DWD representative.

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