Employers Face Tricky Immigration Law Conundrum

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A well-known Illinois company headquartered in Downer Grove - FTD Group, Inc. - learned recently just how hard it is to walk the fine line between compliance with laws that prohibit hiring of illegal aliens and compliance with laws that prohibit discrimination based on citizenship or national origin.

According to reports published by American Lawyer Media and other news outlets, the famous floral delivery company reached a settlement agreement with the Department of Justice (the “DOJ”) in February, agreeing to pay civil penalties to the DOJ and lost wages to a male job applicant who FTD refused to hire after a background check incorrectly revealed a purported issue related to a social security number associated with the man. FTD also reportedly agreed to undergo training with the DOJ on the often misunderstood anti-discrimination provisions of the Immigration and Nationality Act (the “INA”).

The complainant alleged that he informed FTD of his work authorization and offered to show them the genuine documents demonstrating his work status after the background check turned up some potential problems with his identity. When FTD reportedly declined to communicate further with him, he filed a complaint with the DOJ for violation of the anti-discrimination provisions of the INA.

Under precedents established pursuant to the INA, job applicants must be given an opportunity, if there is a problem with their documentation or any background check, to explain the issue and prove up the correct documentation.

In fact, a spokesperson for the DOJ, Dena Iverson, told CorpCounsel.com that the law is violated so often that the Civil Rights Division of the DOJ offers free Webinars for employers on the subject and posts descriptions of cases in which companies have violated the law.

Some of the common employer practices that are actually prohibited include:

  • Restricting applications to U.S. citizens;
  • Requiring job applicants to present a driver’s license and social security card; and
  • Refusing to hire applicants after third-party background checkers turn up a lack of identifying information or incorrect information.

In fact, the number of lawsuits against employers for faulty background checks has risen in recent years as concerns about illegal hiring have increased. For wary employers, the situation can be daunting, but sound legal advice can help them navigate the tricky waters of immigration law.

If you are an employer or agent of an employer responsible for compliance with immigration law, please do not hesitate to contact our office at (847) 564-0712 for an appointment to speak with an experienced and qualified immigration attorney. You can also check out our immigration law Website for more information about how we might assist you.