Adding another wrinkle to the increasingly contentious debate on immigration, the U.S. Department of Justice (DOJ) recently settled an asylum discrimination claim that it brought against Omnicare, a CVS Pharmacy subsidiary and long-term care pharmacy services provider.
An outside recruiting firm acting on behalf of Omnicare allegedly declined to refer a job applicant for an interview because he was not a U.S. citizen or legal permanent resident. However, the applicant had been granted asylum—which provides safe haven to people who flee persecution based on race, religion, nationality, social group membership, or political belief. Asylees are authorized to work in the U.S. and, along with permanent and temporary residents and refugees, are protected by the employment discrimination provisions of the Immigration and Nationality Act (INA).
Among other settlement terms, Omnicare has agreed to pay a $3,621 civil penalty to the U.S. Department of Treasury—the maximum that may be imposed for each individual violation, pledged to refrain from immigration status discrimination, committed to training its staff and contractors on their obligations under the INA, and promised to display English and foreign-language posters advising employees and job applicants of their rights under the INA. If Omnicare does not uphold its end of the bargain, the DOJ’s Immigrant and Employee Rights Section can file a lawsuit to enforce the agreement in federal court.
It is unclear whether the outside recruiting firm had agreed to indemnify and hold harmless Omnicare, or absolve Omnicare of liability and reimburse Omnicare for losses incurred that were the fault of the recruiting firm. A $3,621 fine is seldom a “bet-the-company” proposition. However, had Omnicare been a small business and faced litigation from a larger class of applicants, the outcome could have been different. For example, the maximum INA civil penalty multiplied by a class of fifty would equal $181,050 in statutory liability, with additional possible liability for legal costs and attorneys’ fees. This recent settlement is a good reminder that employers should carefully consider including appropriate defense and indemnification language in contracts with third parties, such as staffing agencies, who make decisions regarding job seekers and employees.
Differential treatment of asylees could potentially implicate other federal, state, and local anti-discrimination laws, like Title VII of the Civil Rights Act of 1964, the Pennsylvania Human Relations Act, and the Philadelphia Fair Practices Ordinance, and further increase the employer’s exposure.
Stay tuned to HR Legalist for further updates regarding immigration and discrimination issues. In the meantime, employers with questions about the impact of this recent settlement should contact counsel with experience in immigration and employment law.
A copy of Omnicare’s settlement agreement with the DOJ can be viewed here.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Alexander V. Batoff focuses his practice on counseling clients on federal and state employment laws and regulations and defending them in litigation. He may be reached at 215-665-3048 or firstname.lastname@example.org.