In light of recent policy changes and heightened enforcement priorities from the U.S. Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC), employers must be increasingly vigilant in ensuring compliance with both immigration and national origin discrimination laws. These developments emphasize both immigration enforcement and protections against bias in hiring and employment practices.
Here’s what employers need to know to satisfy immigration requirements and avoid national origin discrimination in their workplaces.
DOJ’s Immigration Enforcement Priorities
Recent DOJ directives indicate an increased focus on immigration enforcement, which may lead to heightened scrutiny of employers regarding their hiring practices. This includes:
- Increased worksite enforcement and ICE raids aimed at identifying undocumented workers.
- Potential criminal liability for employers who knowingly hire unauthorized workers.
- Investigations into employers who may be obstructing federal immigration enforcement efforts.
While employers must comply with immigration laws, they must also avoid discriminatory practices in hiring, termination and treatment of employees based on their actual or perceived national origin.
EEOC’s Focus on Protecting American Workers
National origin discrimination occurs when an employer treats applicants or employees unfavorably because of their actual or perceived nationality, ethnicity, ancestry or accent. Title VII of the Civil Rights Act of 1964 prohibits such discrimination in hiring, firing, promotions, compensation and other employment conditions.
The EEOC recently announced that addressing discrimination against American workers is currently a priority. Employers should be aware of key areas that could lead to legal risks, such as:
- Hiring preferences for non-U.S. workers: Employers should not favor visa holders, migrant workers or undocumented individuals over American workers based on cost-saving incentives or perceptions about work ethic.
- Wage and benefit disparities: Employers must ensure that compensation, benefits and working conditions are equitable for all employees, regardless of national origin.
- Bias in recruitment and promotions: Hiring and promotion decisions must be based on merit rather than assumptions about nationality, language ability or cultural background.
Notably, employers may ask applicants at the pre-offer stage whether they are legally authorized to work in the U.S. and whether they will require sponsorship – either now or in the future – to work for the company. Once a candidate has accepted an offer of employment, the employer must comply with federal I-9 requirements by reviewing document(s) presented by the employee that establish both identity and authorization to work in the U.S. no later than the third business day after the employee starts work for pay.
Recent Legal Developments: National Origin Discrimination Cases
Recent legal cases illustrate the increased scrutiny of employers' hiring practices. In a landmark settlement, LeoPalace Guam Corporation agreed to pay $1.4 million in response to a national origin discrimination lawsuit filed by the EEOC. According to the lawsuit, the company provided preferential wages, benefits and employment conditions to Japanese employees while offering less favorable terms to American workers. As part of the settlement, LeoPalace must implement monitoring measures, revise hiring practices and reinstate affected employees who wish to return.
Meanwhile, a class action lawsuit against Meta continues to unfold, alleging that the company systematically favored H-1B visa holders over U.S. citizens for job opportunities. A federal judge recently rejected Meta’s attempt to dismiss the lawsuit, citing substantial allegations that Meta disproportionately hires visa holders to reduce labor costs.
Wage Requirements for H-1B Workers
Employers hiring H-1B workers must comply with strict wage requirements under U.S. labor laws. The law mandates that employers pay H-1B employees the higher of either the prevailing wage for the occupation in the geographic area of employment or the employer’s actual wage for similarly employed workers. The prevailing wage is typically determined by the Department of Labor (DOL) and is based on factors such as job classification and location. The employer’s actual wage refers to the rate paid to employees with comparable qualifications and experience in the same role. Additionally, employers must guarantee a minimum number of paid work hours as specified in the H-1B petition, even if no work is available. Failure to meet these wage obligations can result in significant legal consequences, including back pay orders, fines and potential debarment from participating in visa programs. Ensuring compliance with these wage requirements helps protect both foreign and domestic workers while minimizing legal risks for employers.
Best Practices for Employers
To ensure compliance and avoid legal exposure, employers should:
- Review Hiring and Recruitment Policies: Ensure that job postings and hiring practices do not favor or disadvantage applicants based on national origin or citizenship status (unless legally required for specific visa programs).
- Conduct Regular Training: Educate hiring managers and HR professionals on anti-discrimination laws and fair hiring practices.
- Standardize Compensation and Promotions: Implement clear, objective criteria for pay raises and promotions to avoid disparities based on national origin.
- Implement Internal Audits: Work with legal counsel to periodically review workforce demographics, hiring decisions and pay structures.
- Be Prepared for Immigration Inquiries: Comply with immigration requirements and have a plan in place for responding to ICE audits and worksite enforcement actions in a legally compliant manner that does not expose the company to discrimination claims.
