The New York City Commission on Human Rights (“CHR”) recently issued new guidance (available here) regarding discrimination based on actual or perceived national origin and immigration status in employment. While not binding, it offers insight into how the CHR will evaluate and investigate complaints alleging such discrimination. With diverse workplaces, home care agencies are advised to carefully review this guidance and ensure that their human resources managers and supervisors adhere to its terms.
While employers have to follow all legal requirements for confirming that a new hire has proper authorization to work in the United States, the new guidance emphasizes that once an employer has decided to hire an individual, the individual has all of the protections under CHR as any other employee, regardless of immigration status or work authorization. This means that individuals who are suspected to be in the USA illegally cannot be treated any differently than individuals who have proven to be “legally” authorized to work in the USA. This guidance and position of the CHR is consistent with New York State agencies’ general perspective on “illegal” workers (e.g., NY DOL requires earned wages to be paid to employees, irrespective of their immigrations status).
The new guidance states that asking individuals to provide work authorization forms inconsistently or asking to see such forms before the individual accepts a job offer, threatening to call immigration authorities on employees as a way to persuade them to work in unsafe conditions, prioritizing certain national origins over another, and using the terms “illegals” and “illegal aliens” is unlawful under the New York City Human Rights Law. In addition, the guidance states that a “No-Match Letter” from the Social Security Administration is no basis to take action against an employee. The Commission may seek up to $250,000 penalties against employers who engage in what it perceives to be unlawful discriminatory practices.