January 9, 2023

The Governor of New York has signed New York State Assembly Bill A6328A into law. This law amends the New York Executive Law § 292, often known as the New York State Human Rights Law. It will now ban employment discrimination against job applicants and employees based on their immigration status or citizenship. This amendment took effect immediately after the governor signed it and prevents employers from harassing, discriminating, or retaliating against anyone due to their immigration status or citizenship. The law defines immigration status and citizenship as the status of a person who isn’t a citizen of the United States.

However, it does not prohibit employers from checking the immigration status or citizenship of a potential employee or current employee when done for legal purposes. Such purposes include complying with the Immigration Reform and Control Act of 1986 (IRCA). The IRCA bans employers from deliberately hiring undocumented immigrants or anyone not authorized to work in the United States. Therefore, employers may legally take adverse action against these individuals when required by law to do so.

The federal government and other jurisdictions have laws similar to New York’s new regulation. For example, the federal government has the Immigration and Nationality Act (INA), which prohibits employers from discriminating in hiring or firing due to a person’s citizenship status. The United States Department of Justice enforces this law.

New York employers should ensure their policies comply with this new law to avoid possible claims. Here are some tips for complying with the new law.

• Make sure your supervisors and managers understand that, according to New York law, citizenship and immigration status are protected categories. Furthermore, they cannot discriminate, harass, nor retaliate against applicants based on their citizenship or immigration status. Companies should also ensure their workplace policies or training materials see updates that reflect the new law.
• Train human resources personnel on legally determining an individual’s authorization to work in the U.S. Also, ensure human resources personnel know not to ask about immigration status or citizenship unless it is for a specific work authorization purpose. Additionally, once an employee has provided valid documentation, it is essential not to ask for additional proof of employment authorization.
• Companies should not make any adverse employment or hiring decisions based on immigration status or citizenship as long as an individual is authorized to work in the United States.

Employers must also ensure not to discriminate against employees when completing the employment eligibility verification form (Form I-9). This form can prove challenging to complete due to the many types of documentation an employee may present. The best way to ensure compliance with I-9 regulations is to use an electronic I-9 management system. This system will guide hiring personnel through each step and safely store the forms for easy retrieval.

Ensure compliance today by switching to an electronic I-9 management tool with I-9 Compliance.

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