Labor & Employment Law I DECEMBER 8, 2015

Staffing Company May Selectively Use E-Verify

Meghan 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.

Alberto Ruisanchez, Deputy Special Counsel of the Office of Special Counsel for Immigration-Related Unfair Employment Practices responded.
The 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.