VOLUME I Chapter 12 Foreign Nationals in the Workforce

• Jurisdiction: South Carolina

Chapter 12 Foreign Nationals in the Workforce Rebecca L. Sigmund Ann Louise Brown Cauble Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

More than 1200 international firms have a presence in South Carolina, and this number continues to grow.¹ With the increasing international presence in the South Carolina workforce, it is imperative that employment lawyers become familiar with the unique issues facing both domestic and international companies as businesses employ foreign nationals.

I. Immigration Reform and Control Act of 1986 -

Employment Verification and Unfair Employment Practices

A. Background and Legislative History

In 1986, Congress enacted the Immigration Reform and Control Act (IRCA), which for the first time imposed penalties on employers for knowingly hiring or continuing to employ aliens who are not authorized to work in the United States. To aid in the enforcement of the obligation to employ only individuals authorized to work, the law requires employers to verify the employment eligibility of all new employees at the time they are hired using a form known as the Form I-9. As amended, the law also prohibits "citizenship status" discrimination, national origin discrimination, and "document abuse" committed by employers. IRCA also established procedures through which employers may be penalized for violating IRCA's prohibitions or for failing to comply with IRCA's requirements.²

B. Coverage and Exemptions

IRCA's prohibition against knowingly hiring (or continuing to hire) unauthorized workers extends to all employers, those who recruit or refer for a fee,³ and persons who contract or subcontract for labor.⁴ However, the coverage of IRCA's employment verification requirements extends only to employers who hire persons for employment in the United States.⁵ The coverage of IRCA's anti-discrimination provision extends only to employers with four or more employees.⁶

C. Prohibition Against Knowingly Hiring or Continuing to Hire Unauthorized Aliens

IRCA makes it unlawful for "a person or other entity -

to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien ... with respect to such employment⁷ or ...

after hiring an alien for employment ... to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment."⁸

In addition, a person or entity who "obtains the labor of an alien in the United States knowing that the alien is an unauthorized alien" through a contract, subcontract, or exchange shall also be considered to have violated IRCA.⁹

The term "unauthorized alien" means, "with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General."¹⁰ IRCA's regulations define the term "knowing" to include not only actual knowledge, but also constructive knowledge -

knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.¹¹

Situations in which an employer may be deemed to have constructive knowledge that an individual is an unauthorized alien include those in which (i) the employer fails to properly complete the Form I-9; (ii) the employer has information indicating that the alien is not authorized to work, or (iii) the employer acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its workforce or to act on its behalf.¹²

D. Unfair Immigration-Related Employment Practices

Pursuant to IRCA, it is an "unfair immigration-related employment practice" to (1) discriminate on the basis of national origin and citizenship status, (2) intimidate or retaliate against someone for filing or assisting with a charge of such discrimination, or (3) engage in document abuse with respect to the employment verification system requirements.

1. National Origin and Citizenship Discrimination

IRCA makes it an "unfair immigration-related employment practice" for employers to discriminate against an individual on the basis of national origin or against a "protected individual" on the basis of citizenship status with respect to hiring, recruitment (or referral) for a fee, and termination.¹³ IRCA's prohibition against national origin discrimination applies to employers with four to 14 employees, and its prohibition against citizenship status discrimination applies to employers with four or more employees.¹⁴

To be protected by IRCA's anti-discrimination provisions with regard to citizenship status, the individual must be a "protected individual," which only includes U.S. citizens or nationals, legal permanent residents, lawful temporary residents, refugees, and asylees.¹⁵Further, it is not an unfair immigration-related employment practice for an employer to prefer a U.S. citizen or national over another equally qualified individual who is not,¹⁶or to discriminate on the basis of citizenship status when it is required to comply with a government contract or mandate.¹⁷

a. Relationship to Title VII of the Civil Rights Act of 1964

Discrimination in employment on the basis of national origin is also prohibited by Title VII of the Civil Rights Act of 1964. The primary differences between IRCA and Title VII include: (1) IRCA's national origin provision covers employers with only four to 14 employees¹⁸ and Title VII covers employers with 15 or more employees who work for at least 20 out of 52 weeks during the year, and (2) IRCA is enforced by the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)¹⁹ rather than the Equal Employment Opportunity Commission (EEOC). Once a complainant files a charge of national origin discrimination with either agency, he or she is prohibited from filing with the other based on the same set of facts until such charge is dismissed as being outside the scope of their respective jurisdictions.²⁰

2. Anti-Intimidation or Retaliation Provision

It is also an unfair immigration-related employment practice for an employer to "intimidate, threaten, coerce, or retaliate" against any individual who intends to file or has filed a charge or complaint of discrimination or has testified or participated in an investigation, proceeding or hearing regarding such a charge.²¹

3. Unfair Documentary Practices

In the context of the employment verification process, an employer's request "for more or different documents than are required ... or refusing to honor documents tendered that on their face reasonably appear to be genuine" is an unfair immigration-related employment practice "if made for the purpose or with the intent of discriminating against an individual" on the basis of national origin or citizenship.²² (A more detailed discussion of this issue is included below.)

4. Enforcement Procedures and Remedies

Under IRCA, individuals who believe that they have been subject to an unfair immigration-related employment practice must file a charge within 180 days with the OSC, which is within the U.S. Department of Justice.²³ Once a complaint is received, the OSC has 120 days to investigate and determine whether or not there is reasonable cause to believe that the charge is true and whether or not to bring a complaint before an administrative law judge (ALJ).²⁴ If the OSC has not filed a complaint before an ALJ within this 120-day period, the OSC must notify the charging party, who then may elect to file such complaint directly with the administrative law judge within 90 days of receiving the notice.²⁵

Once a complaint is filed with the ALJ by either the charging party or the OSC, the ALJ causes a copy of the complaint and a notice of hearing to be served against the respondent employer within five days of the filing of the complaint.²⁶ The respondent employer may then file an answer to the complaint and appear at the hearing.²⁷

After the hearing, the ALJ issues an order that determines whether or not the respondent employer engaged in any unfair immigration-related employment practice.²⁸If a violation is found, the ALJ can require the respondent to cease and desist from such a practice, to comply with the requirements of the act in the future, to keep detailed records of all job applicants, to hire or reinstate individuals adversely affected by the practice, with or without back pay, to pay a civil penalty between $250 and $10,000 for each individual discriminated against, to post notices in the workplace regarding IRCA rights, to educate all relevant personnel regarding IRCA requirements, to remove false warnings or performance reviews from an employee's personnel file, and to lift any restrictions on an employee's assignments or movements.²⁹ In addition, the ALJ may award the prevailing party (except the United States) with reasonable attorney's fees.³⁰

After issuance of the ALJ's order, any person aggrieved by the order may appeal to the United States Court of Appeals within 60 days of the entry of the order.³¹ The determination of the Court of Appeals is final, subject to the review of the United States Supreme Court.³² If the ALJ's order is not appealed to the U.S. Court of Appeals, the OSC (or the charging party) may petition the United States District Court for the enforcement of the ALJ's order.³³

E. Mandatory Employment Verification System

1. Completion of the Form I-9, Employment Eligibility Verification Form

IRCA makes it "unlawful for a person or other entity to hire, or to recruit for a fee", or "to continue to employ the alien in the United States knowing the alien is (or has become)" unauthorized to work.³⁴ To implement these prohibitions, IRCA created an employment verification system requiring employers to verify each new employee's - U.S...