When the travel ban was signed, foreign nationals were not the only ones placed in a precarious position. Employers who have foreign nationals affected by the ban were affected as well. When faced with these realities, efforts to continue "business as usual" by reassigning work or passing over an otherwise qualified job applicant may open up employers to a myriad of legal problems.
Employers need to be extremely cautious about inquiring into an employee's citizenship, national origin, or ethnicity when determining work assignments or hiring practices. The Department of Justice has a special unit that reviews discrimination based on citizenship or national origin, the Office of Special Counsel for Immigration Related Unfair Employment Practices. This office recommends employers ask only limited questions of new hires related to their authorization to work in the U.S. and to not ask specific questions about national origin or citizenship. However, in this delicate time of immigration, employers are justifiably worried about maintaining their business practices — especially employers who have international obligations and travel requirements.
Employers need to stay current on the status of any travel restrictions. In the event of another executive order that restricts or halts travel for certain people, we offer the following advice. Employers should not single out any of their employees when discussing the consequences of immigration-related Executive Orders and laws but instead notify all employees uniformly. If there is legitimate concern about an employee departing the U.S. on business and then not being allowed to return, consider alternatives such as video conferences before reassigning work. Finally, ensure that file maintenance practices are compliant. Voluntarily offered information about immigration status or nationality should be maintained separately from the primary human resources file, and insulated from hiring and assignment decisions.