[authors: Roy J. Barquet, Bennett L. Epstein]
Renewed Hiring Trends Present Opportunities to Revisit Policies on Employment of U.S. Citizens and Foreign Nationals
Written by: Roy Barquet
The division of the U.S. Department of Justice dedicated to enforcing the anti-discrimination provisions of the Immigration & Nationality Act (INA), namely the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), recently announced settlement agreements with two large-based corporate employers arising from their alleged discrimination against employment-eligible foreign nationals. Collectively, the announced settlements serve as a reminder to U.S. employers to avoid discrimination in the recruitment and employment verification process of foreign nationals. You can achieve this in part by changing internal policies and manuals to reflect the INA’s protections as well as by training human resources personnel.
On March 28, 2012, the OSC settled a violation of the anti-discrimination provisions of the INA by Onward Healthcare, Inc., a national health care staffing company based in Connecticut involving mostly rehabilitation, therapy, and travel nursing positions. The settlement entailed a $100,000 civil penalty for Onward’s broad-based recruitment efforts over more than 12 months to recruit only health care workers that were U.S. citizens. In a longstanding recruitment campaign exceeding a year, Onward advertised via the Internet hundreds of available health care positions by mandating that each employment position’s minimum requisites included U.S. citizenship. The OSC noted that employment-eligible foreign nationals, including lawful permanent residents, and those holding employment authorization documents, should have been allowed to apply as well. U.S. law only permits employers to restrict employment opportunities to U.S. citizens if such jobs are necessarily limited to citizens by law, regulation, or government contract. The OSC concluded that the lack of legal basis for Onward’s publicized citizenship preference created a discriminatory barrier to foreign nationals seeking employment.
On March 22, 2012, the OSC announced a separate settlement, including civil fines and back pay, against a Ross Dress for Less store in San Ysidro, California. According to the OSC, the San Ysidro Ross store engaged in a practice of discrimination against non-U.S. citizen employees in misguided efforts taken by Ross human resources personnel to meet the requisites of USCIS Form I-9. The OSC concluded Ross personnel mandated that non-U.S. citizen employees of the store present employment-eligible documentation that exceeded the requisites of USCIS I-9 guidance. Such guidance specifies the varying forms and quantity of required employment eligibility verification documentation employers may demand as part of their I-9 Form compliance procedures. Human resource personnel of the San Ysidro store required all non-U.S. citizen workers to provide additional verification documents not called for by the I-9 Form. In doing so, the OSC concluded the store treated foreign nationals with work authorization differently during the employment eligibility verification based on their citizenship status or national origin.
These settlements serve as a timely reminder to employers who are increasing recruitment and hiring efforts of new employees in the midst of an apparent improvement in the nation’s economy. Human resources personnel should revisit the documentation requirements found in USCIS’s I-9 Form Handbook Guidance and absent legal authority restricting employment to U.S. citizens, offer available employment positions to all U.S.-based legally eligible workers, including U.S. citizens, lawful permanent residents, asylees, refugees, and those possessing valid employment authorization documents. Human resources (or related) employees who process I-9s and who advertise positions should also be trained in the legal requirements.
FLSA Coverage for Employees, Interns, or Volunteers
Written by: Bennett L. Epstein
Students and recent graduates are often willing to work for experience rather than pay as an entre into their chosen profession. Likewise, employers relish the thought of offering on-the-job training without pay. While on the surface it seems to be a win/win situation, internships and volunteerism will violate federal law unless they satisfy certain criteria.
Ordinarily, most employers must pay their employees minimum wage and overtime as required by the Fair Labor Standards Act (FLSA). Courts have held that determining whether a student intern is an employee under the FLSA is subject to an “economic reality test.” Under that economic reality test, the key issue is whether the intern did work that was of economic benefit to the employer, and whether any benefits to the company were outweighed by the burdens of training an inexperienced student or by the benefits to the student. The U.S. Department of Labor (DOL) has issued guidance to aid in the analysis of whether any students who are interns or those who volunteer their time are in fact “employees” under the economic reality test.
Only not-for-profit entities can engage volunteers. Individuals can donate their time and efforts for religious, charitable, civic, or humanitarian purposes to nonprofit organizations provided they do so freely and without anticipation of compensation. The DOL defines a volunteer as an individual “who donate[s] [his or her] services, usually on a part-time basis, for public service, religious or humanitarian objectives, not as employees and without contemplation of pay.”
An intern, on the other hand, may work either in a for-profit or a not-for-profit setting. The DOL has made it clear that in a for-profit setting, it will presume coverage under the FLSA unless the individual fulfills the following six criteria to be deemed an intern:
The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment
The internship experience is for the benefit of the intern
The intern does not displace regular employees, but works under close supervision of existing staff
The employer that provides the training derives no immediate advantage from the activities of the intern, and on occasion its operations may actually be impeded
The intern is not necessarily entitled to a job at the conclusion of the internship
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship
While the basic difference between an intern (where the work is primarily for the benefit of the worker) or a volunteer (where the work is primarily for the benefit of the not-for-profit institution) often blur, the consequence is the same — the worker will be exempt from minimum wage and overtime coverage under the FLSA.
For those employers in the for-profit arena, the DOL has warned that it will scrutinize whether the worker fulfills all six of the above criteria. If not, it will pursue enforcement of the wage and hour laws.