Sometime in the 1750s Benjamin Franklin wrote lamenting the influx of non-Wasp immigrant settlers into colonial America, “Those who come hither are generally the most ignorant Stupid Sort of their own Nation.” Mr. Franklin’s caustic commentary shows how the topic of immigration has always been a heated one in this country. Hence, it is not surprising how immigrants often work in fear of being harassed and disparately treated because of their residency or immigration status. Fortunately, there is protection here in New Jersey for immigrant workers under New Jersey’s Law Against Discrimination (“LAD”). LAD states that an employer cannot discriminate based on race, national origin, religion, gender, age, disability, marital status, etc. Under the LAD, discrimination based on immigration or citizenship status is treated differently than national origin discrimination because the discrimination is typically based on the employee’s immigration status rather than the country where they originated from.
Although the LAD does not specifically protect employees from discrimination based on immigration and/or residency status, the Immigration Reform and Control Act (“IRCA”) does. 8 U.S.C.A. § 1324. ICRA protects workers from discrimination based on their immigration and/or citizenship status. IRCA makes it unlawful for an employer to discriminate against its employees because of their citizenship, immigration or residency status in hiring, firing, and/or recruitment. Id. IRCA also makes it unlawful for an employer to demand more or different documents that are legally acceptable for employment verification purposes. Similarly, an employer cannot refuse to accept documents that appear to be acceptable and are legally acceptable. Id. The IRCA further prohibits intimidation, threats, retaliation, or coercion against any employee who files charges. It also prohibits retaliation of those individuals who cooperate with an investigation, proceeding, or IRCA hearing. Id.
Individuals protected under the IRCA include citizens of the United States, permanent residents, lawful temporary residents, refugees, and asylees. However, the IRCA does not protect workers from discrimination and harassment who have unlawfully entered our country and/or are illegally employed in this country. In fact, the IRCA was the first federal law to deem it unlawful for employers to knowingly hire persons who are not authorized to work in the United States. It is also illegal under the IRCA to continue to employ an undocumented worker or one who has lost their authorization to work in this country. Consequently, the IRCA requires employers to verify each employee’s work eligibility and identity.