Can states and localities have stronger immigration status-based employment discrimination laws than the federal law? 8 USC §1324b prohibits employers from discriminating against employees or prospective employees on the basis of immigration status, if the individual in question is a citizen or national of the United States, a lawful permanent resident (with a proviso that I won't discuss here), or an asylee or refugee. I'm wondering whether the existence of 8 USC §1324b rules out the possibility of any stronger state law. For example, suppose a state had a law that says employers can't discriminate against people with Temporary Protected Status (TPS). This doesn't directly conflict with federal law, since TPS people have an immigration status that allows them to work for any employer. However, I am not sure whether the concept of field preemption would apply here.
It is well established that the federal government has complete control over immigration. See especially Arizona v. US which holds that States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. De Canas v. Bica (1976), 424 U.S. 351 is also relevant to the application of field preemption to INA. In this case, the courts found that Congress had not (at that point) entered the field of employment of unauthorized workers, so state laws were not preempted by federal law. Laws can change, and with them, potential state powers. In Arizona the court held that Intent can be inferred from a framework of regulation “so pervasive . . . that Congress left no room for the States to supplement it” or where a “federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject” and with respect to issues of immigration, Because Congress has occupied the field, even complementary state regulation is impermissible. The Immigration Reform and Control Act of 1986 adds provisions to the Immigration and Nationality Act, including employment-related law, thus Congress has entered the field of regulating immigration with respect to employment. Current 8 USC §1324b arises from various amendments to the INA, where the present expression &quot;protected individual&quot; was inserted, by Public Law 101-649, to replace earlier &quot;citizen or intended citizen&quot;. Congress also introduced Temporary Protected Status in §302 of the law, which has specific (more restricted) provisions regarding employment. The evidence clearly indicates that Congress intended to include employment issues w.r.t. their supreme power regarding immigration. These discrimination provisions are in the field of immigration, and not discrimination legislation (where Congress has not preempted the field). Congressional silence must, in the light of what Congress did say, be interpreted to mean that the US immigration policy only offers certain specific protections, and states cannot add to or subtract from those protections.
As Tom says and these guys reiterate (I'm quoting those guys), "Employment relationships are presumed to be “at-will” in all U.S. states except Montana. The U.S. is one of a handful of countries where employment is predominantly at-will". Montana (Dept. of Labor and Industry) also states that they are the only ones in the US like that. Montana Code 39-2-904(1)(b) states that a discharge is unlawful if "the discharge was not for good cause and the employee had completed the employer's probationary period of employment". (2)(a) then states that "During a probationary period of employment, the employment may be terminated at the will of either the employer or the employee on notice to the other for any reason or for no reason". There is a presumptive 6 month probationary period in case an employer say nothing, but it could be longer or shorter (it can be 7 years for university professors, and I don't find anything in the code preventing an employer from setting the probationary period at 50 years).
Under U.S. federal law, and under the few state laws of which I am aware, it is not unlawful to expand a pool of applicants based on a protected class such as race, age, sex, etc., but it is unlawful to select an applicant for employment based on a protected class. An advertisement could lawfully encourage applications by persons having certain protected attributes (e.g., born and raised in South America; Native American; Veteran; transgender) in order to diversify the workforce, but it could not lawfully suggest that hiring preference would be given to applicants with those protected attributes. That's a fine line, and it's easy for an employer to cross it, either willfully or inadvertantly. It's best--from both a practical and a legal perspective--to determine the hiring criteria and process before seeking applicants; and to separate that screening process from the advertising process. The advertising process could, for example, target underrepresented groups as long as it did not preclude other persons/groups from learning about or applying for the opportunities.
There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today. Edit: In the United States v. Achtner case, the court wrote: But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ... This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake.
It is illegal to threaten to report a person for violating the law (it is illegal to threaten a person). There are laws in California that limit official cooperation with ICE investigations, therefore the police will not arrest a person for being an illegal immigrant. This is basically a limit on use of state and local resources, and the state has the power to control its purse strings. The state has no power to mandate that individuals not report a suspected or imagined violation of federal law to federal authorities, and there is no California law purporting to have that power.
This law regulates employers, and New York City only has jurisdiction over employers in New York City, so this law would not protect residents of New York City seeking employment outside of New York City. Generally speaking, the law of a jurisdiction can only apply to someone who has "personally availed themselves" of the benefits of operating in that jurisdiction such that it is foreseeable that they would be subject to the laws of that jurisdiction. An employer not operating in New York City seeking employees at large wouldn't meet that requirement. While this concept is usually applied in the context of the personal jurisdiction of a court, it is also not irrelevant to choice of law questions. As with any law, there are edge cases that could be challenging in which the applicability of the law could be unclear. For example, it isn't clear whether this rule would or would not apply to an employer looking for an employee in its Chicago office (e.g. working for the Chicago Mercantile Exchange) that conducts interviews and makes hiring decisions for the job at a job fair intended for NYU Alumni that is conducted at its New York City campus, even though it doesn't have offices for the conduct of its primary business in New York City and the staff conducting the job fair are based in Chicago. It might. But, suppose that the law did apply to the conduct of the employer at the job fair. Would it also apply to a follow up interview in Chicago, or to employees interviewing for the same job at a similar job fair on the Stanford University campus? In these cases, probably not.
In the US, there have been a few cases (EEOC v. The Children's Home, Inc., Michael W. Naylor v. City of Burbank) in the realm of employment discrimination. There may well be more cases which are settled without going to court. There are somewhat more court cases in the UK, see here for a number of relevant categories. In addition, there are significant cases regarding discrimination against gay males, for example Bostock v. Clayton Co, decided by SCOTUS this summer.
The employer might be liable for a discrimination claim, under the doctrine of disparate impact. See Texas Department of Housing &amp; Community Affairs v. The Inclusive Communities Project, Inc and references cited therein. The idea is that an employer can be liable absent proof of intentional discrimination when a practice disproportionately affects protected classes of individuals, and the practice is not justified by reasonable business considerations. So it would depend on why this particular state of affairs in employment came about. There is a test known as the 80% rule which attempts to quantify the notion of "under-representation" as evidence of discrimination. This test (not widely respected by the courts these days) might constitute evidence of discrimination, if a protected class is demonstrably under-represented. The current standard seems to be by comparison to random selection. In EEOC v. Sambo's of Georgia, Inc., 530 F. Supp. 86, the court found that a grooming policy had a disparate impact on members of a religion (Sikhism), and was thus contrary to Title VII of the Civil Rights Act of 1964, although a requirement to shave does not obviously discriminate on the basis of religion. This points to an important element of a successful disparate impact claim, that there has to be a policy with a causal effect. In the above scenario, there is no proposed policy that has this effect. Note that the burden of proof is on the person suing for relief – they must have a theory of something the company does that causes this hiring pattern, a practice that is discriminatory. The identified policy (whatever it might be) could be justified by a business necessity defense (Griggs v. Duke Power Co., 401 U.S. 424), by showing that the practice has a demonstrable relationship to the requirements of the job. That, b.t.w., would not excuse a racially or religiously discriminatory hiring policy for a factory manufacturing menorahs or kinaras. If a company recruiting locally in Boise ID had a 75% black work force, it would be reasonable to suspect that something was up. But legally, without showing that this results from a unjustified policy of the company, mere statistically anomalous distribution is does not sustain a claim of discrimination.