By Tom Starner | August 22, 2016

Dive Brief:

The U.S. Department of Justice's Office of Special Counsel (OSC) is adding more compliance hurdles in its goal to reduce unlawful hiring discrimination against immigrants, according to SHRM.

Kevin Lashus, an attorney with Fisher Broyles in Austin, Texas, told SHRM that the OSC's new proposed rule published Aug. 15 in the Federal Register changes terminology of "documentation abuses" to "unfair documentary practices" is "very significant."

With "abuses," there is a suggestion that there must be intent to harm for employers to face any liability, but documentary practices that are merely "unfair" remove that intent. The language chance "frees them [OSC] up" to take action, Lashus told SHRM.

Dive Insight:

Once the rule is finalized, the OSC will change its name to the Immigrant and Employee Rights Section. The new name will signal the format expansion of the prohibition on discrimination based on national origin or citizenship — an expected change according to legal experts. The Immigrant and Employee Rights Section "will be empowered by these proposed rules to scrutinize how employers seek, track and hire employees like never before," Lashus said.

Justice Department has suggested a complete review of policies for verifying employment eligibility might be needed because of the regulations, according to SHRM.

"In light of these new rules, all employers should examine their hiring policies, which must absolutely include employment verification protocols, and they should do so with a perspective that OSC is monitoring activity from recruitment all the way through onboarding," Lashus told SHRM. "Employers need to review policies or practices beginning with the job opportunity itself."