DOJ Issues New Rule on Unfair Immigration-Related Employment Practices
On December 19, 2016, the Department of Justice (DOJ) Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC) issued a final rule revising Section 274B of the Immigration and Nationality Act (INA) as it concerns unfair immigration-related employment practices.
CUPA-HR and other trade associations submitted comments on the proposed rule in October 2016 expressing concerns that the changes OSC proposed were significant and would subject employers to greater scrutiny during the employment eligibility verification process and increase the DOJ’s capacity to investigate allegations of unfair immigration-related practices. Specifically, the proposed rule would eliminate the “statutory requirement that OSC show that the employer intended to discriminate based on citizenship status” by redefining intentional discrimination to include any instance of disparate treatment “regardless of the explanation for the differential treatment.”
Additionally, OSC would expand the maximum period of time for filing an unfair immigration-related claim from 180 days to five years, disregarding “Congress’s determination that claims should be advanced within 180 days — subject to certain statutory exceptions — in order to ensure that relevant evidence is preserved, key witnesses are available and a reliable determination may be reached.”
The final OSC rule, which took effect on January 18, is little changed from the proposed rule and only made a modest change to the definition of discrimination, which does not resolve the problems identified within our comments. As a result, employers can be found liable for immigration-related employment discrimination if they take actions, even those that are not adverse, during any step of the hiring process that differentiate between employees based on national origin or citizenship status regardless of the reason for doing so.
As the final rule leaves employers open to an increased level of potential liability, there are some groups that are exploring litigation strategies moving forward.