When a small business owner offers employment to a candidate, it can be one of the best feelings in the world for both sides. But what happens if somewhere along the process, mistakes are made that can eventually come back to harm the business?
Even worse, what happens if the same mistakes get repeated over time - resulting in catastrophic financial losses and disruption of the business?
You might not think it's possible in your organization but no company is immune to legal trouble when it comes to onboarding new hires. On November 4, 2019, Alberto Ruisanchez, chief, U.S. Department of Justice, Civil Rights Division's Immigrant and Employee Rights Section (IER) gave several helpful tips to stay out of trouble when making your next new hire. In his presentation, entitled "Avoiding Unlawful Immigration-Related Employment Discrimination," Mr. Ruisanchez mentioned three key areas where employers find themselves in trouble with the law:
- Recruitment or Referral for a Fee
While each of these areas is critically important to pay attention to, I've found that most small businesses make mistakes with onboarding the most. Most specifically, there are mistakes made when proving the employee has the right to work in the United States.
Here are a few tips to keep your business above board and your new hires happily employed for the long haul! Be cautious of making hiring preferences based on citizenship status. According to Ruisanchez, many employers are unable to make hiring preferences for American citizens.
What does this mean? If you have an open position at your company and non-American citizens apply, you cannot reject them on the basis of their citizenship status. For example, If Joe's Plumbing and HVAC has an opening for a Senior Manager role, any eligible applicant cannot be dismissed simply because they are not American.
If the U.S. Department of Justice or Equal Employment Opportunity Commission discovers a practice of excluding qualified applicants from progressing in your hiring process, you may be subject to fines and back pay for all affected individuals.
Now, as with many things relating to the law, there are exceptions. Federal Contractors who participate in contracts that have citizenship-based hiring requirements, workers who are unauthorized to work in America, workers who require employer sponsorship, and, of course, wherever allowable by law. In order to reduce the odds of trigger an inquiry by the USDOJ and EEOC, I recommend the following tips to stay on the right side of the law:
- For roles that are open to citizens and non-citizens alike, do not ask for citizenship status the application. Only ask if the applicant is eligible to work in the United States.
- Review your application practices to ensure they wouldn't trigger a red flag. Seek professional help if you have any doubts.
- Keep a record of all applicants and save paperwork + digital applications for the appropriate amount of time required by law.
Understand employee rights with completing Form I-9, and try not to be too "helpful." When completing Form I-9, a new hire document that all employees must complete, it's important to give each new hire a choice of which documents they use to complete the form.
There are two main requirements for the Form I-9. List A documents show proof of identity and work eligibility while List B documents and List C documents combine to show proof of identity and work eligibility. You have to let the employee pick.
From my experience, small business owners and administrative staff might think they are being helpful by telling new applicants which I-9 documents to bring but that's actually a no-no. Here's what I recommend instead:
- Provide your new hire with the full list of List A, List B, and List C documentation. Here is the official USCIS list.
- Give the employee an ample amount of time and notice to secure the documents that they know will cover both proof of identity and eligibility to work. As the employer, you should check both to ensure neither documents have expired.
- When it comes time to recertify an employee, follow the same course of action. Prescribing which documents to use may seem helpful but it can actually be discriminatory if you only accept certain documents.
For more helpful tips and a recap of the events from the 2019 SHRM Global Mobility and Immigration Summit, check out #GMIS19 on Twitter!