Justice Department Broadens Employer Liability for Immigration-Related Employment Discrimination Claims

United States

In a final regulation published this week, the Department of Justice has made significant changes to the way it enforces federal immigration-related anti-discrimination laws.  The new rule means that employers have greater exposure to immigration-related discrimination claims and increased liability.  The rule takes effect on January 18, 2017.

The Justice Department  rule broadens the definition of discrimination to include any intentional treatment that differentiates between employees because of national origin or citizenship status, regardless of the reason for difference.  It also broadens the definition of “hiring” to include actions taken during the recruitment process.  It gives the Department up to five years from the time of an alleged violation to file a complaint or conduct an investigation.  Previously, it was limited to 180 or 210 days to bring a complaint or investigate one.  The Department in this rule gives itself the authority to waive the 180-day limit for an individual employee to file a discrimination charge against an employer.  The rule also gives the Justice Department expanded investigative powers, both in terms of what information it may access and from whom it may obtain the information.

The regulation comes in the wake of a substantial increase in civil fines against employers who commit immigration-related offenses, including Form I-9 and E-Verify violations, the unlawful employment of foreign nationals, unfair immigration employment practices, and H-1B and H-2B program violations.

What the New Rule Means for Employers

The new regulation means that employers can be found liable for immigration-related employment discrimination if they take actions during the recruitment, hiring or onboarding process that differentiate between employees on the basis of national origin or citizenship status, regardless of their reasons for the treatment, and even where the employer does not take adverse action against those employees.  This can include circumstances in which an employer attempts to help noncitizen employees stay current with work eligibility in the United States but misunderstands the laws regarding reverification of work authorization.

If you have questions about the rule, please contact the immigration professional with whom you work at Fragomen or contact Patrick Shen, a partner in Fragomen’s Government Strategies and Compliance Group and who served as the Justice Department’s Special Counsel for Immigration-Related Unfair Employment Practices before joining the firm. This alert is for informational purposes only.

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