April 4, 2013 IER Technical Assistance Letter on background checks

U.S. Department of Justice
Civil Rights Division
Office o/Special Counsel/or Immlgratlon-Relatr;d
Unfair Employment Practices - NYA
950 Pennsylvania Ave, NW
Washington, DC 20530
Main (202) 616-5594
Fax (202) 616-5509
April 4, 2013
By First Class Mail & Email (arodriguez@acttoday.com)
Arnold Rodriguez
Human Resources Manager
Advanced Call Center Technologies
712 Morgan Blvd. Suite 114
Harlingen, TX 78550
Dear Mr. Rodriguez:
This letter responds to your email dated December 19, 2012, to the Office of Special
Counsel for Immigration-Related Unfair Employment Practices ("OSC"). We apologize for our
delay in responding to your inquiry. In your email, you ask whether it is a discriminatory
practice to change an applicant's last name-such as removing the hyphen from the hyphenated
name of an individual from a Latin American country-when submitting the applicant's name
for a criminal background check. You explain that you rely on the applicant's Social Security
card and "ID (usually Texas issued ID)" to establish the applicant's name for the criminal
background check. You also state that "[t]he 1-9 procedure is appropriately followed and the
applicant is asked to provide acceptable identification documentation."
Please note that OSC cannot provide an advisory opinion on any set of facts involving a
particular individual or entity. We can provide, however, some general guidelines regarding the
anti-discrimination provision of the Immigration and Nationality Act (INA) enforced by OSC, 8
U.S.C. § 1324b, and employer actions under that provision. The anti-discrimination provision
prohibits four types of employment-related discrimination: citizenship or immigration status
discrimination; national origin discrimination; unfair documentary practices during the
employment eligibility verification process ("document abuse"); and retaliation for filing a
charge, assisting in an investigation, or asserting rights under the anti-discrimination provision.
8 U.S.C. § 1324b.
You have indicated that your company changes an applicant's name to lead to a favorable
criminal background check result. We cannot offer you an advisory opinion as to whether
adopting a practice of changing an applicant's name for criminal background check purposes
could constitute a violation of the anti-discrimination provision. We note that treating people
differently in the hiring process based on country of origin may constitute discriminatory
treatment in the hiring process. To the extent that you are treating hyphenated names differently
in the criminal background check process on the basis of the applicant's actual or perceived
national origin, and such treatment results in the applicant failing the background check and

being rejected for employment, the applicant may perceive that his or her national origin played
a role in the rejection. Applicants who believe that they have been discriminated on the basis of
national origin may file a charge of discrimination with their local or state civil rights agency as
well as with OSC or with the Equal Employment Opportunity Commission. If, as you have
indicated, the hyphenated name needs to have the hyphen removed to clear the background
check, you may wish to consider adopting a standard policy on how to treat all hyphenated
names, regardless of national origin, to avoid the perception of having a different policy based on
national origin or citizenship status. Although you do not indicate whether an applicant can be
run through the background check multiple times, you may wish to consider adopting a policy
where applicants agree to have their name run in a certain manner, or to be run through the
background check process using different name combinations if necessary to achieve an accurate
background check result.
With respect to your statement that "applicants" are asked to provide acceptable
identification documentation in connection with the Form 1-9, it is unclear whether your
company is asking applicants, rather than new employees, to complete Forms 1-9. 	Please note
that you may not ask an applicant to complete a Form 1-9 or request documents related to the
Form 1-9 process until you have offered the applicant ajob and the applicant has accepted your
job offer. See Handbook/or Employers: Instructions/or Completing Form 1-9,
www.uscis.gov/files/form/m-274.pdf, p. 3. 	Further, all employees have the choice of which
documentation to present to satisfy the requirements of the Form 1-9, and employers may not
specifically require any particular documentation to be presented. See id., pgs. 5, 31-32.
If you have further questions that pertain to the anti-discrimination provision of the INA,
please contact OSC's employer hotline, 1-800-255-8155, or visit OSC's website at
www.justice.gov/crt/about/osc. We hope this information is helpful and thank you for contacting
OSC.
Seema Nanda
Deputy Special Counsel
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