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Employer Liability Broadened for Immigration-Related Employment Discrimination Claims

The Department of Justice (DOJ) has published a new rule that significantly affects the enforcement of federal immigration-related anti-discrimination laws. The rule takes effect on January 18, 2017. Employers will have greater exposure to immigration-related discrimination claims and face increased liability.

The rule has been broadened to include in the definition of discrimination any intentional treatment that differentiates between employees because of national origin or citizenship status, regardless of the reason for difference. It has also broadened the definition of “hiring” to include actions taken during the recruitment process.

Employers must be aware of the implications. Liability can arise in circumstances where an employer attempts to help noncitizen employees remain current with work eligibility but misunderstands the laws regarding reverification of work authorization.

The new rule gives the DOJ five years from the time of a violation to file a complaint or conduct an investigation, a time period which was previously limited to 180 days to bring a complaint and 210 days to commence an investigation. The rule also gives the DOJ broader investigative powers, expanding both the type and potential sources of information it can access.

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