New York Point out Supplies Defense for Persons Dependent on Citizenship and Immigration Position

On December 23, 2022, Governor Hochul signed into law New York Condition Assembly Monthly bill A6328A, amending the New York Government Legislation § 292 (regarded as the New York Point out Human Rights Regulation (NYSHRL)), to prohibit work discrimination versus workers and position applicants based mostly on citizenship and immigration status.  This amendment, which turned efficient promptly upon Governor Hochul’s signature, prohibits companies from discriminating, harassing, or retaliating versus any personal mainly because of their citizenship or immigration status.  The regulation defines “citizenship or immigration status” as “citizenship of any person or the immigration position of any man or woman who is not a citizen of the United States.” 

The legislation does not expressly ban companies from checking the citizenship or immigration position of existing and possible personnel for lawful purposes, these kinds of as to comply with the Immigration Reform and Command Act of 1986 (IRCA), which prevents companies from knowingly selecting undocumented immigrants, or people today who are not licensed to be used in the United States.  Below the IRCA, if an employer knows that a sure job applicant does not have get the job done authorization for U.S. work, the employer cannot, by law, retain the services of these work applicant.  As a result, companies are permitted to acquire adverse steps from men and women wherever obligated to do so by law. 

Other Identical Federal, Point out, and Community Regulations

This new law, whilst considerable in New York, is mirrored in other jurisdictions.  On the federal amount, the Immigration and Nationality Act, 8 USC § 1324(b), which the U.S. Division of Justice enforces, bans employers from discriminatory selecting or termination dependent on an individual’s citizenship status. 

The New York Metropolis Human Rights Regulation (NYCHRL) also prohibits New York City companies from discriminating based mostly on a person’s perceived or genuine “alienage and citizenship status” (whereby “alienage” is interchangeable with “immigration status”).  The NYCHRL is extra generous to folks than the new condition regulation, as it penalizes companies for discriminating versus an personal based mostly on equally their actual and perceived immigration or citizenship position.  While the New York City Commission on Human Rights has revealed enforcement guidance for the New York City law, the condition has not issued an enforcement advice from the state on its new legislation.

Wanting over and above New York, final August, Illinois amended the Illinois Human Legal rights Act (IHRA) to make it unlawful for businesses to discriminate from staff and job applicants because of to their “work authorization position.”  By introducing this protected group to the IHRA, the Illinois legislature sought to guard the rights of individuals not born in the United States and not a U.S. citizen, nonetheless authorized to do the job in the United States.

Suggestions

To be certain compliance with this new condition legislation and stay away from possible promises, businesses performing enterprise in New York Point out need to overview their insurance policies and practices, and take into account implementing the adhering to techniques:

• Plainly connect to supervisors and/or managers that New York Point out has amended its law to increase citizenship or immigration standing as guarded groups, and determine means to reduce prohibited discrimination, harassment, and/or retaliation.

• Revise worker handbooks, policies, and coaching elements to involve information on anti-discrimination, harassment, and retaliation based mostly on an individual’s citizenship or immigration standing.

• Review and update any guidelines that look neutral on their face but may well, in follow, have a disparate effect on workers and/or work applicants thanks to their citizenship or immigration status.

• Teach human sources personnel on how to (1) lawfully figure out no matter whether an applicant or worker is authorized to get the job done in the United States, (2) to refrain from inquiring about an employee’s or occupation applicant’s citizenship or immigration status unless of course for a precise do the job authorization objective, and (3) if an individual has provided legitimate documentation, to forgo necessitating any more, needless proof of U.S. get the job done authorization.

• Stay away from making employing and adverse employment decisions entirely based mostly on an individual’s citizenship or immigration position until that particular person is not authorized to operate in the United States.

Littler will go on to keep an eye on developments relating to the implementation of the amended NYSHRL prohibiting discrimination based mostly on citizenship or discrimination standing, like its influence in the place of work.