The Justice Department reached an agreement today with Cumberland Staffing Inc., doing business as AtWork Cumberland Staffing (ACS), to resolve the department’s investigation into whether the company discriminated against work-authorized immigrants and naturalized U.S. citizens in violation of the Immigration and Nationality Act (INA).  ACS is a temporary staffing agency with an office located in Cookeville, Tennessee.
 
The department initiated its investigation after a Tennessee resident notified the department of an ACS job posting that included a U.S. birth certificate requirement.  The department’s investigation found that between December 2015 and February 2016, ACS’s Cookeville office created and published a job posting stating that applicants for machine operator positions at a client company must present a U.S. birth certificate, even though there was no legal authorization for such requirement.  The discriminatory posting was published on several job search engine websites during this time period.
 
The INA’s anti-discrimination provision prohibits employers from discriminating in hiring, recruiting or referring for a fee based on a person’s citizenship, immigration status or national origin.  In the absence of a legal basis to do so (such as a law, regulation or government contract that requires U.S. citizenship restrictions), employers, recruiters and referrers for a fee may not limit job opportunities or otherwise impose barriers to obtaining employment based on an individual’s citizenship, immigration status or national origin.  
 
By requiring a U.S. birth certificate – a document that only non-naturalized U.S. citizens possess – to be considered for an employment opportunity, ACS’s job posting created a discriminatory barrier for work-authorized individuals, such as naturalized U.S. citizens, U.S. nationals, lawful permanent residents, asylees and refugees, said DOJ. 
 
Vanita Gupta
 
According to DOJ, the Immigration and Naturalization Act prohibits “from discriminating in hiring, recruiting or referring for a fee based on a person’s citizenship, immigration status or national origin.  In the absence of a legal basis to do so (such as a law, regulation or government contract that requires U.S. citizenship restrictions), employers, recruiters and referrers for a fee may not limit job opportunities or otherwise impose barriers to obtaining employment based on an individual’s citizenship, immigration status or national origin.”
 
DOJ considered that when ACS required an American birth certificate that the company was thus creating “a discriminatory barrier for work-authorized individuals, such as naturalized U.S. citizens, U.S. nationals, lawful permanent residents, asylees and refugees.”
 
ACS will have to pay an unspecified civil penalty (a fine) and remove document requirements on job listings except where required by law. Additionally, ACS will be required to provide training to its staff on “proper employment verification and reverification procedures and ensure that trained staff or legal counsel review future job advertisements.”
 
As in many other instances of alleged discrimination, Assistant Attorney General Vanita Gupta, who leads DOJ’s Civil Rights Division, was quoted by the department. “Staffing agencies …cannot create unlawful and discriminatory employment barriers.” Gupta was once a top attorney at the American Civil Liberties Union.
 
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is responsible for enforcing the anti-discrimination provision of the INA.  The statute prohibits, among other things, citizenship, immigration status and national origin discrimination in hiring, firing or recruitment or referral for a fee; unfair documentary practices in employment eligibility verification; retaliation; and intimidation.
 

Federal hiring practices

In certain limited cases, the Federal government may hire non-citizens to perform work on the Federal payroll. According to a government website --- USAJobs.gov -- "Federal agencies may only employ United States citizens and nationals (residents of American Samoa and Swains Island) in the competitive service. However, Federal agencies may request OPM approval to appoint a non-citizen, if no qualified U.S. citizens are available. 
 
"An agency may hire a qualified non-citizen into the excepted service or Senior Executive service if it is permitted to do so by the annual Appropriations Act and the immigration law and the agency’s specific laws and internal policies."
 
Congress prohibits paying non-citizens to do work within the United States, except in a number of categories. They include:
 
"Persons who owe permanent allegiance to the United States (for example, natives of American Samoa and Swains Island).
"Persons lawfully admitted for permanent residence and seeking citizenship as outlined in 8 U.S.C. 1324b(a)(3)(B).
"Persons admitted as refugees under 8 U.S.C. 1157 or granted asylum under 8 U.S.C. 1158 and have filed a declaration of intention to become lawful permanent residents and then citizens when eligible."
 
Also included in that list are "wildland firefighters" who are hired to control forest fires in the U.S. These frequently come from Russia.

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Spero News writer Martin Barillas is a former US diplomat, who also worked as a democracy advocate and election observer in Latin America. His first novel 'Shaken Earth', is available at Amazon.

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