Should an employer just hire U.S. citizens to avoid any risk of violating the Alabama Immigration Act, HB 56? It’s not a trick question. The clear answer is “No!”
For fear of running afoul of HB56, and all the penalties contained therein for employing an unauthorized worker, an Alabama employer may conclude it is just best to hire only U.S. citizens, since hiring individuals who are permanent residents or authorized aliens, for example, is too risky. That conclusion would a mistake.
On one side of the coin, you have the federal and Alabama laws that prohibit the knowingly employment of unauthorized workers. On the other side of the coin, however, is the anti-discrimination law enforced by the U.S. Department of Justice, Office of Special Counsel of Immigration-Related Unfair Employment Practices (“OSC”). An employer must balance on a tightrope between these two compliance issues.
The anti-discrimination law prohibits a policy of hiring U.S. citizens, unless that policy is specifically required by federal law. (For example, federal law may require that only U.S. citizens may have jobs that involve sensitive government or security information.)
Other types of prohibited discrimination include:
- Demanding specific or additional documents from an employee instead of allowing the employee to present any of the documents listed on the acceptable list of documents for I-9 form completion.
- Refusing to hire workers who sound or appear foreign.
- Demanding that lawful permanent residents present new “green cards” when theirs expire but not demanding U.S. citizens to produce new documents when theirs expire.
And don’t think that employers who violate the anti-discrimination laws are not getting caught and fined. The OSC has published several cases on its website.
I believe that the OSC has a careful eye on states such as Alabama that have passed their own immigration laws, because it knows that an employer’s initial instinct may be to go beyond the permissible federal boundaries in attempting to comply with state law.