Policing Illegal Hires Puts Some Employers in a Bind

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The Department of Homeland Security currently is auditing employment records of many companies suspected of hiring undocumented workers. Yet in an emerging paradox for businesses, the Justice Department and other agencies have stepped up probes of employers—including restaurant groups, factories and retailers—for allegedly violating anti-discrimination laws by demanding too many identity documents from applicants who aren’t U.S. citizens.

To fend off lawsuits or enforcement actions, several companies have recently reached out-of-court settlements with the government; in some instances they paid fines.

“The message is: Employers beware. You need to worry just as much about asking for too many immigration documents as you do about not asking for enough,” said Stephen Yale-Loehr, an immigration-law scholar at Cornell University.

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Anti-discrimination protections in the INA, meanwhile, guarantee “all individuals authorized to work in the U.S. have the right to seek employment without the added burden of special rules or document demands based on their citizenship status or national origin,” said Thomas E. Perez, assistant attorney general for civil rights. He said his unit is prioritizing enforcement of the INA provisions.

“The monkey is on the back of employers to make the call,” said Mary Pivec, a Washington, D.C., attorney who is defending several companies with immigration-related problems. {snip}

By the end of 2010, the Justice Department will have boosted by 25% the total number of attorneys and investigators in its Office of Special Counsel for Immigration-related Unfair Employment Practices. {snip}