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?
(1) 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.
(2) 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:
- Review official government guidance and websites and regularly update travel advisory policies accordingly.
- Consider suspending international travel in favor of alternative communication, such as video conferences or webcasts.
- Carefully craft inquiries to applicants and employees and carefully manage information requested or gathered to comply with employment anti-discrimination provisions.
- Avoid individually identifying workers who may be impacted due to nationality or citizenship and targeting communications to them. Rather, employers should notify all mobile employees of the potential consequences of the Executive Order when traveling to and from any of the seven countries identified in the Order. Further, employees should be informed that they can contact human resources if they have any concerns due to citizenship, nationality or recent travel to these seven countries, or have recently traveled to them for any reason. Employers should instruct employees or applicants to educate themselves about any risks of business travel that is personal to them or their situation, and encourage employees or applicants to voluntarily contact company human resources if they have related concerns about business travel.
- Work with managers on how they can support their mobile employees, without risking potential employment claims. This may involve some “do’s and don’ts” training and managing (i.e., if an employee refuses to travel abroad, it may be unreasonable to discipline or terminate the employee, etc.) and/or sending reminders of anti-harassment policies and obligations.
- Ensure that file maintenance practices are compliant. Where an applicant or employee voluntarily provides information about his/her immigration or nationality status, it is important that such data be maintained separately from the primary human resources file, and segregated from hiring and operational decisions-makers responsible for managing and evaluating employees and applicants. Human resources can establish written protocols for identification, collection and management of such information, which would serve as helpful evidence should an applicant or employee allege that the company misused the information.
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.