We are living in uncertain and quickly changing times. Most recently, on January 27, 2017, President Trump issued an Executive Order that suspends entry into the US for 90 days of certain aliens from Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. For more information, read here. For US multinational employers, this latest Executive Order immediately begs the question: What action must, or should, a US employer take with respect to its mobile workforce, managers and business leaders?
From a US employment law perspective, there are several considerations that are implicated by this Executive Order and how a company reacts. Some workers may not want to travel on certain work assignments, while at the same time, some managers might be tempted to affirmatively tap certain workers they assume will not have travel-related delays. Such employment decisions create the potential for employee discrimination claims based on citizenship, race, religion, or national origin, as well as tort claims by employees who travel for business and are detained or turned away at the border upon return or have their private information mishandled by their employer. There certainly will be defenses available to employers facing such claims. Nevertheless, multinational employers with expatriates or employee international travel can follow some best practices to avoid these risks and still address the mobility needs of their workforce and business.
What are the guide posts for employers when considering citizenship or national origin when making employment decisions, including identifying employees for business travel and assignments?
- Employers should be cautious not to inquire into an employee’s citizenship or ethnicity when making employment decisions about hiring or work assignments. This restraint also should be applied when identifying which employees might be impacted due to the new Executive Order. On this point, the Department of Justice’s (“DOJ”) Office of Special Counsel for Immigration Related Unfair Employment Practices (“OSC”) recommends employers ask only limited questions of new hires related to their authorization to work in the US, and not ask specific questions about national origin or citizenship. The Executive Order does not provide employers with a safe harbor to undertake additional vetting of existing employees, and such inquiries could be problematic under state and federal discrimination laws.
- Additionally, recent DOJ guidance on US employers’ anti-discrimination obligations when verifying candidates’ immigration and citizenship status under US export control laws indicates that employers should take certain steps when identifying employees from certain countries or with certain immigration status, and the implications for permitted work assignments. That same guidance strongly suggests that if the employer has not yet determined if national origin or citizenship is implicated for a particular position or job assignment, gathering that information from an overly broad pool of US workers raises employment discrimination concerns, especially if the employee is not in a position covered by export control laws. This DOJ guidance suggests that, notwithstanding potential national security defenses, US employers must limit the timing and nature of inquiries to and communications with employees and applicants to balance anti-discrimination obligations.
Taken together, and cognizant that this is truly uncharted territory to navigate, US employers should consider the following best practices when managing their mobile workforce:
The View for Global Employers
For non-US employers who send workers into the US on business, similar anti-discrimination, employment, and immigration-related principles likely will apply under the applicable local and home country laws. Privacy laws may also be implicated for non-US employers. Accordingly, non-US multinational companies should navigate these issues in a similar way with respect to their mobile workforces coming into the US.
How We Can Help
Our Global and US Employment & Compensation Law and Mobility and Immigration attorneys understand the complexities of today’s workforces and the underlying risks involved in employee mobility in uncertain times. Our attorneys routinely provide advice to companies regarding options for US employee mobility policies. We can help weigh the risks to multinational companies regarding how to respond to the new Executive Order, and identify a pragmatic approach for your company to manage its executive mobility and expatriate needs.