In the United States, non-citizens do not have the right to employment, unless they are specifically granted permission via an employment-related visa. Some employers use this law, however, as a license to engage in discriminatory conduct, even against many who are U.S. citizens or permanent residents with the legal ability to work. If you believe you have been a victim of discrimination due to your immigration or citizenship status, it is a good idea to acquaint yourself with the law and to learn more about your options.
Immigrant Employment and the Law
The Immigration Reform & Control Act (IRCA) was passed in 1986, requiring several significant changes to employers’ interactions with suspected immigrants. The act prohibited the knowing hire of undocumented immigrants and required that employers be able to attest to their employees’ legal status in the United States. However, it did not discuss the steps employers were permitted to take to weed out undocumented applicants. These steps were more greatly clarified via case law and amendments to the Immigration & Nationality Act (INA), including the addition of an anti-discrimination provision at 8 USC 1324(b).
The adoption of E-Verify in 2007 also helped to clarify the law surrounding employers’ ability to weed out undocumented applicants while providing a simplified onboarding process for employers. Originally started as a pilot program in 1997, E-Verify was rolled out as a voluntary option by which employers could easily confirm a potential employee’s eligibility for hiring in the U.S. through an online tool. Most states have since adopted it, South Carolina included, but many employers do not bother checking all applicants, or simply disregard the findings. In these cases, an employer could mistakenly hire an ineligible employee, which could lead to potential legal issues.
Immigrant Rights and Resources
Employment law in the U.S. grants certain rights to all applicants, regardless of their national origin. If an undocumented immigrant is hired, for example, they are entitled to certain rights, in spite of the fact that they ought not to have been hired. The Equal Employment Opportunity Commission cites the IRCA, stating that an employer may not ask about an applicant’s citizenship during the hiring process, nor may they use E-Verify to check on the status of current employees. Additionally, employers may not ask for more documentation than is required, such as demanding a birth certificate and passport when only one of the two is accepted for known citizens. Deviation from these practices may be considered discrimination and a violation of the law.
If an employer does discriminate against an employee based on immigration status, whether intentionally or not, there are mechanisms via which complaints can be filed, even if the employee is undocumented. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is charged with enforcing 8 USC 1324(b) and will take appropriate action if you can show you have been discriminated against, either on the basis of citizenship, national origin, or document abuse (such as retaining one’s Social Security card or passport when they have no further reason to do so).
Employment Law Advice
Having an experienced legal mind on your side can help get you through the confusing and time-consuming process of prosecuting a discrimination claim. Attorney A. Christopher Potts and the Charleston employment lawyers at Hitchcock & Potts can help guide you and provide the legal help you need to achieve a fair result. Contact us today to set up an initial consultation.