Employment Law Issues: Citizenship, Uniforms
By: Joel J. Greenwald, Esq.
Q: I have a number of employees that are non-English speaking. I am worried about inadvertently hiring someone who is not permitted to work in the United States. Can I ask applicants if they are United States citizens?
A: You should not ask that question of an applicant, as it could be used as evidence of discrimination. It is illegal to discriminate against a prospective employee based upon his or her national origin or citizenship status. An employer can ask, however, whether the applicant is “authorized to work in the United States on a full time basis.”
Once an offer of employment is made, to verify their work eligibility, businesses must have their employees complete the INS Form I-9. Within three days of employment, employees are required to provide their employers with documents proving their identity and their right to work in the United States. Employers have an obligation to review these documents, and must verify that they have done so on the I-9 form. Employers should maintain the completed I-9 form and supporting documents, for all employees hired.
Accidentally hiring an illegal immigrant will not usually expose a business to regulatory fines and penalties. Conversely, intentionally hiring individuals that are not authorized to work in the United States, or accepting counterfeit or otherwise altered citizenship documents, can result in an employer facing severe monetary and criminal penalties. An employer, thus, acts at its own peril by ignoring its obligations under the immigration laws.
This, unfortunately, is a narrow and dangerous line to walk. On the one hand, if too aggressive, an employer can be sued for discrimination. On the other, if an employer is too lax it can be subjected to severe fines, criminal penalties and the scrutiny of the federal government. To avoid legal consequences, it is best to proceed cautiously and implement proper hiring and documentation practices.
Q: The company I own has always required employees to wear a uniform - which we provide. We then deduct the cost of the uniform from the employees’ paychecks. We are, once again, changing our look and will soon be handing out new uniforms and taking the costs for these uniforms out of the employees’ paychecks. An employee has complained that it is not legal for us to charge employees for their uniforms. Is this true?
A: The answer to your question is complicated. In general, there is no law against charging employees for uniforms that they must wear at work. When you do so, however, you must be careful, as there are laws that you may inadvertently violate.
For example, the deduction of the cost of the uniform from employees’ pay most likely violates New York State Labor Laws governing deductions from employees’ wages. Such deductions are rarely permitted. Generally, however, a company may not make deductions from wages, like you are doing, for amounts that an employee may owe to the company.
Even if you have employees reimburse you for such costs, rather than directly deducting them from their wages, you may face other legal concerns. For example, deductions that reduce an employee’s wages below state or federal minimum wage levels are prohibited. Additionally, if employees are unionized, such uniform costs may be governed by a collective bargaining agreement or may be a subject over which you must negotiate. This is not a practice you should engage in without first investigating the possible legal ramifications.
This article was originally published in Movers News in December of 2004.
The materials contained within this article are for informational purposes only and are not legal advice nor are they to be used as a substitute for legal advice. These materials have been prepared by Greenwald Doherty LLP and should not be reproduced without permission. © 2006 Greenwald Doherty LLP all rights reserved.
