Blanchard & Walker Weekly

Topic of the Week  National Origin Discrimination

  • Can an employer choose employees of one national origin over another?
  • Can I be asked if I am a citizen?
  • Can I be asked to take an English test?

Can an employer choose employees of one national origin over another?

In some limited circumstances, employers are allowed to prefer one national origin to another. This is allowed only when national origin is what is called a "bona fide occupational qualification" for the position, which means that belonging to a certain national origin is necessary for the job.

For example, being of Latin origin might be a bona fide occupational qualification for a role in a movie featuring a Cuban family. Circumstances in which preferences for one national origin are allowed are very rare. The employer must be able to demonstrate the position has special qualifications that only members of one national origin can fulfill.

Can I be asked if I am a citizen?

An employer should not ask about your citizenship status during a job interview. The employer can only notify you as a job applicant that, should a job be offered to you, you will be expected to provide evidence that you are legally entitled to work in the US within the first three days of starting work. The employer should say this to every job candidate, as saying this selectively may be illegal discrimination.

Can I be asked to take an English test?

Your employer or potential employer can test an employee on English proficiency (ability to speak or write in English), as long as the the employer tests all applicants. However, if the employer or potential employer denies someone an employment opportunity because of English proficiency, the employer must show a legitimate, nondiscriminatory reason. Whether or not it is illegal to use the English test will depend on the qualifications of the employee, the nature of the position, and whether the employee's level of English proficiency would have a negative effect on job performance. Requiring employees or applicants to be fluent in English may violate the law if the rule is not related to the requirements of the position or job performance, and it appears that the rule was adopted to exclude individuals of a particular national origin. 

Thought of the Week

"English-only workplace policies can be discriminatory and foster a hostile environment when implemented with the intent to silence foreign languages in the workplace or manufacture a reason to discipline persons who are not native English speakers. The EEOC identifies discrimination related to English-only laws as one of several ways that employees can suffer illegal discrimination or harassment based on national origin."

–Immigrants’ Employment Rights under Federal Anti-Discrimination Laws,

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

Labor's civil war over 'Medicare for All' threatens its 2020 clout

In union-heavy primary states like California, New York, and Michigan, the fight over single-payer health care is fracturing organized labor.

Top Five News Headlines

  1. Despite #MeToo, opinions on sexual harassment have barely budged
  2. Two Big Workplace-Software Providers to Merge
  3. If the governor signs this bill, Virginia will become the fourth state to ban hair discrimination
  4. Workers are ‘treading water’ despite booming economy, analysts say
  5. Tech Workers Take Action: A Look At Recent Labor Movements

List of the Week

from EEOC Enforcement and Litigation Report

Enforcement and Litigation Report

  • Age and sex discrimination charges fell by 1,338 and 1,123 charges, respectively—since last fiscal year. 
  • Charges pertaining to sexual harassment allegations dipped, payouts in this area swelled from $56.6 million in FY2018 to $68.2 million in FY2019.
  • EEOC recoveries fell 4 percent overall, from $505 million in FY2018 to $486 million in FY2019.


  • Blanchard & Walker: Fighting Payroll Fraud for Independent Contractors February 20, 2020
    Clocking overtime
    Company’s Use “Independent Contractor” Agreements to Avoid Paying Overtime to Employees.

    Blanchard & Walker lawyers have been fighting for over a decade to secure the rights of cable technicians and other laborers who have been deprived of overtime pay by the use of “independent contractor” labels.  Still, we are amazed by the depth of the problem and astonished to hear how extreme and widespread the abuse of “independent contractor” classifications has become.   (more…)

  • Proposal Would Limit the Reach of Non-Compete Agreements for Low-Wage Workers January 24, 2020
    House Commerce Committee Hearing on HB 4874

    A bill under consideration in the Michigan Legislature would limit the most abusive forms of overreaching of “non-compete agreements” and end unfair restrictions on low-wage workers.  At a recent committee hearing, B&W Attorney David Blanchard was on hand to testify on behalf of the Michigan Association for Justice – discussing the impact of these restrictions on low wage workers and the drag they have on the Michigan economy. Read MIRS Coverage on HB 4874. (more…)

  • Blanchard & Walker PLLC : Workers on a “Day-Rate” Pay System are Still Owed Overtime Pay. October 31, 2019

    “Day-rate” regulations under the Fair Labor Standards Act (“FLSA”) are very clear: “day-rate” workers” are entitled to additional pay for hours worked over forty in a week. The Department of Labor Regulation, 29 C.F.R. § 778.112, requires that when employees paid on a day-rate work more than forty hours in a week, their hourly rate is calculated by totaling all money received in the workweek and dividing by the total hours actually worked in that week. Such employees are then entitled to an overtime half-time premium for all hours worked over forty that week. (more…)