Staffing Agencies Cannot Use E-Verify At Different Hiring Sites to Discriminate

Some employers use the E-Verify program to confirm workers’ eligibility to work in the US.  E-Verify is voluntary for employers, except in limited circumstances where use of the program is required, such as for federal contractors.  In California, for example, E-Verify is not required.  California also prohibits employer misuse or use of E-Verify to retaliate against workers for exercising certain protected rights.

Under federal immigration law, employers may not use E-Verify to discriminate or treat workers differently based on national origin, citizenship, or immigration status.  For example, employers may not selectively use E-Verify only on certain workers based on their national origin, or perceived national origin. 

Recently, the US Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices, the agency charged with enforcing the anti-discrimination provisions of federal immigration law, issued an opinion letter clarifying that staffing agency employers must be careful not to violate these rules.  If a staffing agency only uses E-Verify for certain hiring sites and not others, this could be evidence of unlawful discrimination, even if the staffing agency used E-Verify because of the demands of its client (the contracted local employer).  However, to the extent that an employer uses E-Verify selectively for reasons wholly unrelated to an individual’s citizenship status or national origin, that selective use would likely not violate the antidiscrimination provisions. 

Organizers and activists should keep a look out for unlawful discrimination by staffing agencies, but should also keep in mind that it may be acceptable for a staffing agency to use E-Verify only at one location due to client demands and not use it at other staffing locations.
Unions should also remember that unless a unionized employer is required by law to enroll and participate in E-Verify, the decision to enroll in and implement E-Verify is a mandatory subject of bargaining because, like drug/alcohol testing, it affects terms and conditions of employment, including "the potential to affect the continued employment of employees who become subject to it.” 

For more information regarding E-Verify, contact your labor law counsel. 

By Xochitl Lopez | December 18, 2015

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