State governments and the feds are putting more and more pressure on companies to avoid hiring unauthorized workers. One possible side effect of that pressure: an increase in national origin discrimination claims.

On one hand, employers can be severely penalized for hiring illegal workers. And on the other, the law says they can’t treat employees differently based on where they’re from.

Staying out of trouble on both sides requires consistency and strict compliance with the government’s rules and regs. Here are two big areas companies need to watch out for:

E-Verify

One part of the push against illegal immigration is the expansion of the Department of Homeland Security’s E-Verify system. A bill extending the program for five more years is currently working its way through Congress, and President Bush recently signed an executive order requiring federal contractors to use the system.

Additionally, 10 states and counting have passed laws requiring some or all employers to use E-Verify.

Improperly using the system, though, can get a company dragged into court to fight a discrimination suit. Here are some E-Verify dos and don’ts, courtesy of the DHS:

• Use the program for all new hires. Selectively seeking verification when a company is suspicious of one person is an easy way to get hit with a bias claim.
• Don’t use it as a pre-screen, or to check on current employees. E-Verify is for new hires only. Verification can take place only after the employee fills out an I-9 form and no later than three days after his or her start date.
• Don’t act too quickly. As the program’s opponents point out, E-Verify has been known to return incorrect information. Getting a “Tentative Nonconfirmation” (TNC) is not grounds for termination. Employees must be notified of the TNC as soon as possible, referred to the Social Security Administration (SSA) and given eight business days to resolve the discrepancy by contacting the SSA.

No-match letters

Similar to E-Verify discrepancies, receiving a no-match letter from the SSA (notice that the name and SSN reported by an employer don’t match the records in the SSA’s database) doesn’t mean an employee needs to be fired.

To avoid a charge of discrimination, employers need to treat all no-match situations the same and follow the DHS’s safe harbor guidelines after receiving a letter:

• Within 30 days, verify there was no recordkeeping error on your part.
• Then, ask the employee to confirm the info given to you was correct.
• If it was, direct the employee to the SSA to resolve the issue.

If the problem isn’t resolved within 90 days and the employee isn’t terminated, the company risks getting slammed for knowingly employing an unauthorized worker.

However, if an employee’s fired before then, it may look like the company merely assumed the employee was unauthorized — which could be grounds for a national origin bias suit.

Tags: E-Verify, immigration, national origin, no-match