When it comes to hiring protocol and immigration in the US, HR folks really are caught between a rock and a hard place. On the one hand, you need to ensure you’re only hiring and employing a legal workforce, an assertion made on everyone’s favorite government form, the beloved I-9.
But at the same time, you also have to avoid treating a candidate differently during the hiring process based on an individual’s real or perceived citizenship or immigration status. These requirements come courtesy of the Immigration Reform and Control Act of 1986 (“IRCA”), the seminal law that’s best known for introducing the Form I-9 requirement, employer sanctions, and immigration-related discrimination prohibitions.
And when you combine all those elements together, you get the ultimate slippery slope for employers. The more you try to safeguard against an immigration or I-9 audit, the higher the likelihood that you may inadvertently or even deliberately treat non-citizen employees differently in ways which are not allowed.
But wait, there’s more! As it turns out, pre-hire immigration questioning is a lot muddier than you think. Because now, some 30+ years later after IRCA was passed, employers need to consider additional state laws that offer individuals even broader protection against immigration-related discrimination.
Which brings us to today’s blog on an interesting lawsuit out of Washington State against Zoom Video Communications, Inc., whose cloud-based peer-to-peer software platform is used across the globe to facilitate teleconferencing, telecommuting, distance education, and yes, recruitment and hiring as well.
Before proceeding with this article, please note that this lawsuit is still in the very early stages, and all of the facts described below are only “alleged to have occurred.” Zoom may have an entirely different story to tell once they get their day in court.
Dashed Dreams for a Dreamer
The plaintiff, Royer Ramirez Ruiz, is a Washington-state resident with a bachelor’s degree in applied mathematics, who has worked in the fields of software development and data engineering. He’s also a so-called “dreamer,” having been brought to the US by his parents when he was only six years old on a tourist visa which expired long ago.
In 2012, Ruiz applied with the USCIS under the agency’s Deferred Action for Childhood Arrivals (DACA) program, an Obama-era executive action which provides both temporary protection from deportation and work authorization to qualified applicants. He received his first DACA approval in October 2012 and has renewed it every 2 years since that time. According to the complaint, Ruiz is currently authorized to work until April 2022 (and has an EAD to prove it).
In July of this year, a technical recruiter contacted Ruiz about some open engineering positions at Zoom, which eventually led to a series of interviews.
At the onset, the recruiter inquired whether the plaintiff needed immigration sponsorship, and Ruiz confirmed that he did not (since his EAD provides for “open market” employment). A different recruiter then interviewed Ruiz for 2 open positions at the company: a SecOps (“security”) engineering position and a MLOps (“machine learning”) engineering position. As part of those discussions, the recruiter once again asked the standard HR question regarding work authorization, and Ruiz informed them that he was authorized to work.
A third recruiter then spoke with Ruiz about the MLOps position. According to the complaint, the recruiter seemed genuinely interested – even going so far as to remark that Ruiz’s current background made him an ideal candidate for the position. As the call was wrapping up, the recruiter asked once again if Ruiz needed sponsorship. As he done before, Ruiz confirmed that he had work authorization and would not need sponsorship.
However, according to the complaint, the recruiter pressed him further, asking “if you are not a citizen, does this mean you are a permanent resident?” and then later tried to find out what type of protected program Ruiz was working under. As the recruiter continued to pressure him, Ruiz eventually divulged that he was part of DACA.
The recruiter then allegedly replied with “ooh, that might be an issue” and said he would need to check internally before sending his resume to the hiring manager. A few days later, Ruiz received a tersely written email informing him that they could not move forward “due to immigration” and offering to provide more information. Ruiz followed up seeking further clarification but never heard from them again.
The Cause of Action
According to the complaint, Ruiz was shocked and upset by the email. “He had sacrificed a significant amount of time preparing for multiple rounds of interviews with Zoom and had never experienced such blatant discrimination in a professional setting before, making him feel disposable and worthless,” the complaint alleges.
The lawsuit, filed in federal court in Seattle, alleges that Zoom discriminated against Ruiz when it rejected him for a job position solely on the basis of his citizenship or immigration status. Ruiz is seeking damages from Zoom for lost wages and emotional distress.
But wait you say, can a DACA holder even sue for citizenship status discrimination? I thought you had to be a member of a certain protected class. Right you are, my intelligent made-up friend. Under IRCA, only U.S. citizens, U.S. nationals, asylees, refugees, and recent lawful permanent residents are protected from citizenship status discrimination. All individuals are protected against national origin discrimination, but that does not appear to be alleged in the case at hand.
Which is why the plaintiffs are bringing this case under Washington State’s law against discrimination (WLAD), which as of last year, now includes “citizenship or immigrant status” to the list of protected classes, without otherwise limiting or defining those characteristics. The recent change in the WLAD essentially prohibits discrimination in Washington State based on citizenship or immigration status unless a distinction or differential treatment is required by a state or federal law, regulation or government contract.
The lawsuit also alleges violation of 42 U.S.C. Section 1981, which prohibits discrimination on the basis of race or alienage (citizenship) in making and enforcing contracts, including employment contracts.
Lessons for Employers
As mentioned earlier, it remains to be seen how Zoom will respond to the allegations presented in Ruiz’s lawsuit. Will they tell a different story about the hiring process? Were the recruiters even Zoom employees? Perhaps there were other legitimate reasons for refusing to hire the candidate?
Regardless, this case gives us an opportunity to review some basic (but important) pre-hiring rules and principles for asking immigration-related information from candidates:
(1) Limit your questions. The Immigrant and Employee Rights Section (IER) of the Department of Justice has long advised employers wishing to inquire about sponsorship to limit their questions to that topic, without asking specifically about immigration status. IER has recommended the following “yes/no” questions:
1. Are you legally authorized to work in the United States?
2. Will you now or in the future require sponsorship for employment visa status (e.g., H-1B visa status)?
Such questions are generally permissible as they are designed to inform you as to whether the applicant is permitted to work in the US, while also letting you know whether you would need to sponsor the individual. Both of these are legitimate inquiries that have nothing to do with the candidate’s status.
Employment law experts also generally advise asking these questions on the employment application, rather during an interview (as was alleged to have occurred in this case). Having the questions in writing ensures that they are asked of each applicant in exactly the same way and eliminates the risk of the employer blurting out an inappropriate comment (such as “ooh, that might be an issue.”)
(2) Know the law(s). IER strongly cautions employers about asking questions that may make applicants concerned that their citizenship status is going to affect hiring decisions, even if it turns out those individuals are not “protected” under IRCA. As this case illustrates, there are variety of state and federal laws which protect employees from employment discrimination based on several factors, including their citizenship, immigration status, national origin, and race.
(3) Consult the IER’s publications for workers and advocates. The IER maintains a detailed library of educational documents aimed at helping employers and workers understand the anti-discrimination provision of IRCA. For example, IER has a DACA flyer which includes many do’s and don’ts relating to pre-employment screening and the I-9 process.
(4) Create standard operating procedures for your employment eligibility process. Experts have long recommended that employers create their own internal handbook, which specifically documents (in some detail) how employment eligibility verification will be conducted. Having an SOP not only shows good faith (in the event of government audit), it also serves as a training document – which is particularly important for large organizations where there is a possibility that a recruiter might go rogue or off-script.
(5) Use Electronic I-9 software to enforce your procedure. Once you’ve crafted your SOP (ideally, with the help of counsel), you’ll want to consider using an integrated electronic I-9 and E-Verify solution that will ensure your onboarding efficiency and enforce the delicate balancing act described above. A well-designed system will alleviate many I-9 and E-Verify concerns by preventing mistakes, standardizing practices, and guiding employers on the proper procedure for requesting I-9 documentation. Be careful though because not all I-9 systems are created equally. You’ll need to make sure the system is fully compliant with the I-9 regulations and treats employees consistently, regardless of their status.
Want to learn more about how an electronic I-9 system can automate your process while ensuring compliance? Contact us today to learn more about the Guardian I-9 and E-Verify solution.