Have you ever required that a job applicant be a US citizen? Unfortunately, there are employers who do exactly that, and find themselves in for a big surprise.
Unless citizenship is a regulatory requirement, that practice is most probably a recipe for a lawsuit — with a nice payout. As you can guess, this week’s post is about an employer who did exactly that.
This week’s real-life case example is Kforce, a national staffing firm, that will now pay $920k to settle a lawsuit by the US Dept of Justice.
Specifically, Kforce allegedly violated the Immigration and Naturalization Act by specifying in job advertisements/postings that job applicants had to be US citizens. In doing so, it excluded qualified non-US citizens with permission to work in the United States from job opportunities.
Of the $920k, $690k will go to the government and the remaining $230k will go to the affected candidates. Kforce also must train its personnel on anti-discrimination practices, revise its policies and submit to government monitoring.
In other words: Congratulations Kforce, on the start of a long, beautiful friendship with the US government that you neither sought nor desired.
Seriously though, there is another piece to this story. As a staffing firm, Kforce has clients for whom its screening and then placing the candidates. (I know, thank you Captain Obivious, but I have a point so work with me here, OK?) Most clients of staffing firms are joint employers with the staffing firm. That means that the client AND the staffing firm can be jointly liable for discriminatory hiring/employment practices toward those contingent employees.
Oh and, then there’s the NLRB’s swing back to the Obama-era definition of a joint employer: If you have the right to control an employee’s work or work conditions you are a joint employer. Never mind that you don’t actually exercise control, if you can, that’s enough for the NLRB and that means that a worker supplied by a staffing firm can be considered a union member. It also means that when more than one entity exercises employer privileges or rights under the applicable law, all such entities will have to bargain with any union representing the workforce in question.
OK, I digressed a bit, but I believe the point is an important one. Let’s get back to staffing firms that discrimination on behalf of a client. The most common scenario is when the client requests exclusion of certain candidates in a protected class and the staffing firm, wanting the business complies with the request. The staffing firm claims it’s not discriminating, just following the client’s request (hmmm, just following orders, where have we heard that before and how did that work out?) and the client pointing the finger at the staffing firm. Neither party is likely to prevail there.
So here’s the bottom line:
Staffing firms: it’s illegal and you can be liable for complying with a client’s illegal, discriminatory request.
Clients: If you can’t do it in direct hiring, you can’t hide behind a staffing firm as your proxy to discriminate.
Now, admittedly I don’t know for a fact that such was the case here. Maybe Kforce took it upon itself to exclude non-US citizens and the client(s) didn’t know. It’s possible. Is it likely? I don’t think so, but I’ll happily admit to it if I’m proven wrong. The scenario I described happens often enough to warrant discussing it here.
In any case, such a practice clearly doesn’t suggest an inclusive workplace — and that does not bode well for any such company regarding liability, work culture and employee/company brand.
If you think there’s a valid reason to limit an applicant pool for specific jobs, your friendly local employment counsel can help you figure out how in advance how to proceed so the lawsuit and other damage doesn’t happen.
But, as I always say, the choice is yours. You do you.
Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.janetteleveylaw.com to contact me for a complimentary 20-minute consultation.
Watch my television interview on Good Morning HR with Mike Coffey on Mental Health and the ADA.
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