A lawsuit was recently filed against a major video communication company. This lawsuit shows how vital it is for employers to understand what immigration-related questions they are allowed to ask as part of the hiring process.

An applicant for a position with this company was interviewed in the summer of 2021. The applicant had been born in Mexico, but in October of 2012, his application to the DACA  program was approved. This program offers recipients work permits as well as protection from deportation. DACA is for individuals who were brought to the United States as children and grew up here. Recipients of the program must renew their status every two years, at which time their employment authorization card is renewed. The applicant, in this case, had renewed his status every two years. 

The applicant participated in the recruitment process with the company and stated that he had proper authorization to work in the United States. However, the interviewer started asking a number of questions related to his immigration status, such as whether he was a permanent resident or a citizen, as well as what program he used to receive his work authorization. The applicant stated that he was a DACA recipient, and the interviewer said that could be an issue. The applicant was not hired for the position due to his immigration status.

The applicant then sued the company claiming that they discriminated against him due to his citizenship and immigration status. The lawsuit was originally filed on October 11th and is still ongoing.

It is essential for employers to remember that they are banned from refusing to employ protected individuals based on their immigration status. Employers must treat potential employees equally regardless of their ancestry, place of birth, native language, country of origin, or the way the potential employee looks or sounds. Any potential employee who is authorized to work in this country, even those with nonimmigrant visa status, must not be discriminated against on the basis of national origin.

Employers are allowed to ask potential employees if they are authorized to work in this country and if they might require immigration sponsorship in order to obtain work authorization now or in the future. If the applicant answers yes to the second question, then the employer can ask more questions about the individual’s work authorization and immigration status in order to make a hiring decision based on adequate information. However, it’s still important to be cautious about what questions are asked. Also, it’s important to remember that requiring potential employees to be U.S. citizens is illegal unless this is required by a government contract, regulation, or law. Typically the best thing to do when hiring is to treat all applicants equally.

This case illustrates the dangers that employers can face in mishandling work authorization. Determining whether an employee is authorized to work and completing their I-9s can be a difficult task that is confusing for many employers. The best way to handle this is with an electronic I-9 management system. This will help you to properly complete the work management process and keep it consistent, ensuring equal treatment for every new hire.