Dressier, General Counsel of the PGC Group, requested guidance on whether a
staffing agency could, consistent with the anti-discrimination provisions of
the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1324b, selectively use
the E-Verify program with respect to referrals for employment to one client but
not others. PGC Group is a staffing agency that does not currently use
E-Verify, but a client company requested that it run temporary employees
assigned to work for that client through E-Verify.
Ruisanchez, Deputy Special Counsel of the Office of Special Counsel for
Immigration-Related Unfair Employment Practices responded.
INA’s anti-discrimination provision and E-Verify’s terms and conditions
prohibit treating individuals differently in the E-Verify process based on
their citizenship status or national origin. An employer that selectively
creates E-Verify cases for employees based on citizenship status or national
origin may violate the anti-discrimination provision. For example, an employer
should not designate participating hiring sites for E-Verify based on the
citizenship status or national origin of the employees hired at those locations.
Ruisanchez recommended against selective use of E-Verify based on client
demands because it could create the appearance of prohibited citizenship status
or national origin discrimination, which may lead to workers filing
discrimination charges with the Office. However, to the extent that an employer
or E-Verify employer agent uses E-Verify selectively for reasons wholly
unrelated to an individual’s citizenship status or national origin, that
selective use would likely not violate the anti-discrimination provision.
· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311