Employer Can't Question Regarding Employee's Immigration Status

[realtraveller]

Another legal absurdity. They abound these days.

http://www.washingtontimes.com/natio...4516-6708r.htm

A group of workers sued their employers claiming that an English-only job aptitude test was discriminatory. During pre-trial depositions, the attorneys for the employer asked the workers whether they were here legally and the workers refused to answer the question. The Ninth Circuit said such questioning was irrelevant and the Supreme Court refused to take the case.

Here's the logical inconsistency.

The Ninth Circuit said that the questioning would cause illegal aliens to be reluctant to report discriminatory hiring practices. What? Isn't it illegal for the employer to be hiring them in the first place?

Then the employees said that their immigration status was determined when they were hired (implying, but not explicitly saying, that they were working legally). Well, if they were working legally, why refuse to answer the question about iimmigration status?

[theworm[$]]

Stupid.


As far as the test - I've worked places where speaking English is required and in places where it wasn't. In the places where it wasn't, all memos, tests etc were generated in English, Spanish, Mandarin and Russian. I don't think its crazy for an employer to require that employees can speak, read and write English.
I was rejected by lots of employers because I'm not bilingual. If I can be "distriminated" against (and I don't really think its discrimination) for not speaking Spanish, it should be equally ok to "discriminate" against candidates that can't work in English.

[erik_kosberg]

The Ninth Circuit said that the questioning would cause illegal aliens to be reluctant to report discriminatory hiring practices.

There’s no inconsitency at all. The aliens would also be reluctant to report other discriminatory hiring practices, not just those related to immigration status.

[realtraveller]

erik_kosberg said

There’s no inconsitency at all. The aliens would also be reluctant to report other discriminatory hiring practices, not just those related to immigration status.

But they shouldn't have been hired in the first place.

If I perpetuate a fraud on my employer by padding my resume and saying I have qualifications I don't have, all I'd have to do is file a discrimination lawsuit for something else and the initial fraud I committed to get hired is absolved? Can't be brought up again? Can't be questioned?

Ridiculous.

[erik_kosberg]

But they shouldn't have been hired in the first place.

Then the employer can fire them.

If I perpetuate a fraud on my employer by padding my resume and saying I have qualifications I don't have, all I'd have to do is file a discrimination lawsuit for something else and the initial fraud I committed to get hired is absolved? Can't be brought up again? Can't be questioned?

What does that have to do with immigration law? It’s a strawman argument.

[theworm[$]]

erik_kosberg said

Then the employer can fire them.

On what grounds?

[erik_kosberg]

Employers can find a zillion reasons to fire someone. A guy trying to unionize a company can be coincidentally fired for something entirely unrelated.

I‘m not saying that the immigrants should be fired, just that it’s easy to fire someone.

But my response to Kathy’s “they shouldn't have been hired in the first place was a bit off topic.

[theworm[$]]

No, I know that, but if the employer can fire someone for being illegal, but can't ask if the person has legal work status......
That doesn't make sense to me.
Employers can't ask me my age or my religion, but they also can't fire me because of my age or my religion.

[erik_kosberg]

Oh, but they can. They just can’t say that’s the reason. An employer could get away with doing so occasionally quite easily. But if it became a pattern (coincidentally finding reasons X, Y, and Z to fire employees on their 57th birthdays), they’d probably get caught.

And note that in the case that Kathy cited, the company had already hired these people and then asked about immigration status during a dispute over English-language skills.

[theworm[$]]

You're right, but isn't something wrong with all this?
Why shouldn't we be required to show proof of our legal work/residence status to get a job?

[erik_kosberg]

That’s the issue that the court addressed:

Granting employers the right to inquire into workers' immigration status in cases like this would allow them to raise implicitly the threat of deportation and criminal prosecution every time a worker, documented or undocumented, reports illegal practices or files a Title VII action

[theworm[$]]

But it doesn't make sense. Employers should be able to ask at the time of hiring. If they are undocumented and therefore don't get hired, then they won't have to worry about reporting illegal practices. If they are working illegally, and want to report some sort of illegal practice by the company - are they suddenly immune to deportation? No. So they wouldn't report anyway.

[erik_kosberg]

You’re assuming that they don’t anonymously report illegal practices by the company.

[mjfrombuffalo[$]]

It still comes down to irrelevancy. If you're complaining about one thing and they ask you about something else, something that perhaps they already have checked when you were hired, it's an intimidation tactic. It's like if you're complaining about a new overtime policy and suddenly your employer's attorney is asking you to bring in copies of your diplomas from the schools you said you went to when you were hired (and which they checked with) - irrelevant to the issue you raised but vaguely threatening just the same.

[theworm[$]]

Ah. Ok - got that.
Still - does this make any sense? We have a problem with unemployment. We have citizens and legal residents who need work and can't find it. Shouldn't they somehow be protected? Our citizens and residents rights should be valued at least as much as the illegal residents. We don't let kids work without working papers. Why shouldn't we require "working papers" (including those that say we're legally allowed to work) for adults?

[erik_kosberg]

Permitting employers to ask about the immigration status of potential employees is asking those people to incriminate themselves, effectively, Have you committed the crime of illegally entering the United States? We permit employers to ask about felony convictions but not simply if their potential employees have committed felonies.

[theworm[$]]

And this is logical?
Whatever.

[erik_kosberg]

Seems logical to me, what am I missing?

A fundamental question that hasn’t been asked is should employers be an extension of the Border Patrol and INS? Once everything else is stripped away, I think that’s the core issue.

[mjfrombuffalo[$]]

erik_kosberg said

Seems logical to me, what am I missing?

A fundamental question that hasn’t been asked is should employers be an extension of the Border Patrol and INS? Once everything else is stripped away, I think that’s the core issue.

But, but, but... in a way they are. In order to take a job you have to show X forms of ID, one or two proving identity and one or two proving citizenship. The I-9 form:

http://uscis.gov/graphics/formsfee/forms/i-9.htm

All U.S. employers are responsible for completion and retention of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must verify the employment eligibility and identity documents presented by the employee and record the document information on the Form I-9. Acceptable documents are listed on the back of the form, and detailed below under "Special Instructions."

[theworm[$]]

Well then I am missing something.

If the country requires people to have a certain status to work (citizen, green card, etc) then individuals should have to prove that they are allowed to work when they apply for a job. I don't see that as an extension of INS. Today is election day in Florida. I am going to go vote after work - and they're going to ask me for a voter registration card to make sure that I am allowed to vote. To me it's the same thing.