FTD Case Offers Lessons on Immigration Discrimination

Sue Reisinger

Corporate Counsel

02-22-2013

This week was no bed of roses for the FTD Group Inc. Instead of kicking back after Valentine’s Day, the nationwide flower delivery company found itself publicly scolded for immigration discrimination—and employers across the U.S. might learn a valuable lesson from FTD’s missteps.

The U.S. Department of Justice’s civil rights division announced Wednesday that it had reached an agreement with FTD to settle a job applicant’s allegations that the company retaliated against him for asserting his rights under the anti-discrimination provision of the Immigration and Nationality Act.

The applicant, an immigrant who was authorized to work in the U.S., said that FTD rescinded a job offer after a background check revealed a purported error in his Social Security number. The man said he informed FTD that he was authorized to work in the United States and provided documents showing his status. And then he expressed concern that the company might be violating the anti-discrimination provision of the INA by refusing to hire him, according to the DOJ.

The applicant threatened to pursue his legal rights, and FTD “responded by terminating all communication with the individual,” the DOJ statement said. FTD’s legal office didn’t immediately return a phone call seeking comment.

Admittedly, the penalty was a slap on the wrist for the suburban Chicago company. It agreed to pay $1,800 in back pay to the man and $3,000 in civil penalties.

FTD also agreed to undergo Justice Department training on the anti-discrimination provision of the INA.

“People authorized to work in this country should not be afraid to dispute errors in databases relating to their employment eligibility or documents,” and it’s unlawful to retaliate against anyone who does, said Thomas Perez, assistant attorney general for the civil rights division, in the statement.

Robert Brown, a former deputy director of the U.S. Immigration and Naturalization Service, told CorpCounsel.com that cases like the FTD complaint are unusual but not unheard of. Brown is now in private practice in Cleveland, Ohio.

Employers need to know, he says, that under the law the applicants “do have an opportunity, if there is a problem with documents, to get the correct documents and bring them back to the employer. It is not a basis to turn someone away.”

This federal law specifically prohibits discrimination based on citizenship status or national origin in hiring, firing, or recruiting. It also bans so-called document abuse, such as unfair documentary practices during the employment eligibility verification process, as well as retaliation or intimidation.

The office of special counsel for immigration-related unfair employment practices, within the civil rights division, is responsible for enforcing the provision.

Dena Iverson, spokesperson for the civil rights division, told CorpCounsel.com that the law is violated often enough that the division offers free webinars to help employers better understand it. More information about the webinars is available here.

The division also posts descriptions of cases in which companies violated the law, in an effort to guide employers and their general counsel.

In one recent example, an online ad for a security guard position restricted applications to U.S. citizens. In a similar case, a company required proof of U.S. citizenship from applicants.

Another employer violated the law when it required job applicants to present a driver’s license and social security card. The company agreed to request only those documents specifically approved by the government, and not to require them at the time of application.

And yet another company got in trouble when it refused to hire an applicant after a third-party vendor doing a background check wasn’t able to provide information on the applicant’s social security account, such as in what state it was issued and on what date. That is not a valid reason to reject an authorized immigrant applicant.

Background checks can be an especially sensitive area, says Washington, D.C., attorney Gregory Krasovsky, who runs his own law office.

“What I have seen over the years is a meaningful number of lawsuits against prospective employers concerning background checks,” Krasovsky explained.

“Before you start any standard operating procedure on background checks, you need to make sure you are in compliance with all state and federal laws,” he advised.