Critical Issues for Employers in the Hiring Process: I-9 Compliance, Disability Inclusion, and Interview Questions

Hiring & Immigration: Form I-9 Compliance

Of the myriad of new hire documents that must be completed, the Form I-9 is one of the most important when it comes to immigration compliance.

The Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States within three days of that employee starting work – including citizen and noncitizen employees.

The employee and the employer have different obligations with respect to the Form I-9: (1) Each must complete the applicable section of the Form I-9; (2) the employee must present acceptable document(s) evidencing identity and employment authorization; and (3) the employer must examine the employment eligibility and identity document(s) the employee presents to determine whether the document(s) reasonably appear to be genuine and to relate to the employee, and then record the document information on the Form I-9.

While just a few pages long, it is easy to make mistakes with the Form I-9 in even the most straightforward of cases. Some common mistakes include:

• Form is not completed within the appropriate time
• Employee leaves out required information (full name, address, date of birth, etc.)
• Employee does not sign
• Employer does not enter an acceptable verification document
• Employer fails to enter the date of hire

A failure to have accurate Form I-9s on file for every employee can be costly. For substantive and uncorrected technical violations, fines range from $220 to $2,191 per offense. Additional fines may be assessed based upon the circumstances. Moreover, U.S. Immigration and Customs Enforcement (ICE) - the federal agency charged with conducting worksite investigations and Form I-9 compliance - has made compliance a priority. From January to July 2018, ICE served more than 5,200 businesses around the country with Notices of Inspection.

Consequently, businesses should consider conducting regular Form I-9 audits to ensure their Form I-9 policies and procedures are compliant, and that their existing completed Form I-9s were appropriately executed. If not, businesses may want to contact counsel to determine best corrective actions to take.

Disability Inclusion and ADA Compliance in Hiring

Employers covered by the Americans with Disabilities Act as amended (“ADA”) are prohibited from discriminating against qualified individuals based on disability during all stages of employment, including during the application and hiring process. The ADA, among other things, requires employers to provide reasonable accommodations for the known disability of a qualified applicant or employee, barring undue hardship. This requirement implicates several practical issues.

For example, the ADA prohibits or restricts disability-related inquiries and medical exams during various stages of employment: pre-offer of employment, post-offer of employment, and during employment. Employers generally may not require applicants to disclose information about their disability or medical impairment prior to an offer of employment. However, an applicant will need to disclose certain information, pre-offer, to receive a disability accommodation if needed to complete an online application, participate in a job interview, or take an employment test. Different rules apply to disability and medical inquiries during the post-offer and employment stages, so employers should be aware of which inquiries they are making and when, and whether such inquiries are permissible. Additionally, certain employers with government contracts may also ask applicants to voluntarily disclose their disability status for affirmative action purposes under federal laws, such as Section 503 of the Rehabilitation Act.^[1]

Covered employers’ application and recruiting materials should also be accessible to individuals with disabilities. One way employers can ensure equal access is to provide recruitment and application information through means other than the Internet when an applicant with a disability cannot access information on the computer. Another option is to make online information accessible to people with disabilities by designing webpages that meet the needs of individuals with motor, sensory, and neurological impairments. Examples of accessible web design features include:

1. Designing large graphics that mark hyperlinks so that people with tremors have more room to activate the links;
2. Keeping screens organized and uncluttered for individuals who are easily distracted;
3. Providing brief descriptions of short sounds for individuals with hearing impairments; and
4. Removing refresh options so that screen readers for visually impaired applicants do not repeatedly restart while scrolling through a webpage.

In recent years, businesses have been targeted with lawsuits where job applicants have argued that websites are inaccessible to individuals with disabilities. Fortunately, there are numerous online resources available to assist employers with designing more accessible websites.^[2]

What Not to Ask in Interviews: Protecting Yourself From Potential Discrimination Claims

Interviews can be awkward, both for the interviewee and for the interviewer. Chit-chatting in interviews is normal, and innocent questions are often asked to break the ice. It’s also natural for interviewers to want to find something in common with an interviewee to build connections.

Though their intentions may be harmless, interviewers could unknowingly be putting themselves and the company at risk for legal action. Federal and state laws prohibit employers from making hiring decisions based on the candidate’s protected class, which includes the candidate’s race, ethnicity, religion, sex, disability, national origin, among others. A job candidate could argue that certain questions were used to discriminate against him/her during the company’s hiring decision. The line between acceptable and illegal interview questions is oftentimes fuzzy. Employers should avoid questions that have the potential of revealing information that may possibly lead to bias in hiring. Below is a list of interview questions we generally encourage employers not ask during an interview:

1. “Oh! I went to South High School too, what year did you graduate?”
   
   High school graduation indicates the candidate’s age, which may trigger an age discrimination claim. The interviewer only needs to know if the candidate is of legal age to work (e.g., 18 or 21).
2. “I love your accent! Where are you from?”
   
   A job candidate could interpret this question as a probe about race, ethnicity, or national origin.
3. “What language do you speak at home?”
   
   Similar to asking about accents, asking about languages spoken at home could trigger claims of national origin discrimination. Assuming such information is job related, as an alternative, consider asking: “What languages do you read, speak, or write?” and “How well do you speak that language?”
4. “Are you a U.S. Citizen?”
   
   Certainly, employers are entitled to ask the candidate if they are legally authorized to work in the United States. But phrasing the question about the candidate’s citizenship may give rise to race and national origin discrimination allegations.
5. “Do you have any children?”
   
   This question may trigger claims under both the Pregnancy Disability Act (“PDA” and the Family Medical Leave Act (“FMLA”), and other state laws. Consider asking, “Do you have any restrictions that would prevent you from traveling?” or “Do you have commitments that will conflict with your work schedule? This job does not have good flexibility, and we’re pretty rigid about our hours.”
   
   Other commonly asked PDA and FMLA triggering questions include:
   • “Should we refer to you as Ms., Miss, or Mrs.?”
   • “What kind of childcare arrangements do you have in place?”
   • “Are you currently taking any form of birth control or fertility treatments?”
   • “What are your plans if you get pregnant?”
   • “Does your spouse work? What does your spouse do for a living?”
6. “Do you have any disabilities?”
   
   By asking this question, the employer may be setting itself up for the accusation that the employer discriminated against the candidate, violating several federal and state laws. Consider asking, “Are you able to perform the essential functions of the job with or without an accommodation?” If the candidate does have a disability that requires an accommodation, it is the candidate’s responsibility to bring it to the employer’s attention after the employer has extended an offer of employment.

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^[1] See Voluntary Self-Identification of Disability Form, available at https://www.dol.gov/ofccp/regs/compliance/sec503/Self_ID_Forms/VoluntarySelf-ID_CC-305_ENG_JRF_QA_508c.pdf [back]

^[2] See, e.g., Job Accommodation Network (JAN), Accommodation and Compliance: Online Applications and Websites, available at https://askjan.org/topics/onlineapps.cfm [back]