A recent lawsuit initiated against Zoom Video Communications Inc. illustrates how important it is for employers to know the proper immigration-related questions to ask during the hiring process.
During the summer of 2021, Royer Ramirez Ruiz interviewed for a position with Zoom. Ruiz was born in Mexico, and his application to become a DACA recipient was approved in October 2012. DACA offers work permits and protection from deportation for those who grew up in the U.S. after having been brought to the country as a child. Ruiz renews his DACA status every two years and is issued an employment authorization card with each renewal.
Throughout the Zoom recruitment process, Ruiz confirmed that he was authorized to work in the U.S. However, during one video interview, the interviewer began asking multiple questions about Ruiz’s immigration status, including whether he was a citizen or a permanent resident and what protected program gave Ruiz his work authorization. Ruiz eventually disclosed that he was a DACA recipient, to which the interviewer responded that it “might be an issue.” Ruiz ended up being rejected from the position “due to immigration.” In his lawsuit, he alleges that Zoom discriminated against him on the basis of citizenship and immigration status. The lawsuit was filed on October 11 and is currently ongoing.
Employers are prohibited from denying protected individuals employment because of their real or perceived immigration or citizenship status. This means that employers are not allowed to treat employees or prospective employees differently because of place of birth, country of origin, ancestry, native language, accent, or looking or sounding foreign. All work-authorized individuals, including those in nonimmigrant visa statuses, are protected from national origin discrimination.
Generally, the following questions are acceptable to ask pre-employment:
- Are you legally authorized to work in the U.S.?
- Do you now, or will you in the future, require immigration sponsorship for work authorization (for example, H-1B status)?
When a candidate answers affirmatively to the second question, an employer may ask more direct questions about the applicant’s immigration status and work authorization to make an informed hiring decision but should proceed with caution. Employers should also avoid “citizen only” hiring policies unless required by law, regulation, or government contract. It is otherwise illegal to require applicants for employment to be U.S. citizens.
As a general rule, employers should treat all applicants the same way. A uniform and consistent process protects employers from potential national origin and citizenship status discrimination claims.