Just Ask Jacob: What work authorization questions can you legally ask?

Q We are a federal contractor, and many of our positions require U.S. citizenship/permanent residency. Some of our managers want our employment application to ask whether candidates are eligible to work in the United States. Are there any legal concerns with this? We aren’t planning to ask for citizenship status. We only want to confirm that the candidates can legally work in the United States.

A Yes, you can ask a prospective employee if he or she has work authorization, but you must be careful not to collect any additional information. If you ask this on an application, ideally you would just let applicants check ‘Yes’ or ‘No’ rather than give them space to write. You need to avoid asking about citizenship or type of authorization.


Q A nonexempt employee’s wages were accidentally increased by $2 an hour six months ago. We have just discovered this error. The employee never came forward with the information. Can we take back the overpayment through prearranged payroll deductions?

A Yes, you may rescind the overpayment through prearranged payroll deductions. However, in Texas you need a signed authorization before you can deduct any amounts from an employee’s pay. Inform him a mistake was made and needs to be corrected. Then get him to sign a deduction authorization. Typically, these deductions should be spread out over a period of time so they don’t overly burden the employee or decrease his pay below the minimum wage.


Q We would like to start making employment contingent on successfully passing both a drug test and a physical. Is there any legal reason we can’t require a physical?

A Requiring a physical is allowed, but it’s fraught with potential complications. First, under the Americans with Disabilities Act (ADA), the examination can only be required after a contingent offer of employment has been made and only if all other candidates for the job type are required to have a physical. The medical history must be kept confidential, and the results cannot be used to discriminate against those with disabilities. It should only assess whether the prospective employee is able to perform the job duties with or without accommodations.

Because this is such a complicated situation, it’s important to engage an employment attorney for specific guidance before implementing any such requirement.


Q We have surveillance cameras in our warehouse. An employee has expressed concerns that we are violating his privacy rights. Are we allowed to use the cameras?

A Yes, you are allowed to use the cameras in most instances. If you have a legitimate need to install the cameras, the areas covered are public areas, and the employees know about the cameras, it’s likely acceptable.

Complications arise when employers try to install hidden cameras to “catch” employees in the act or when the motive isn’t legitimate. For instance, if you installed cameras specifically to monitor what union employees were doing or saying, it would likely violate the National Labor Relations Act (NLRA).


Jacob M. Monty, the managing partner of Monty & Ramirez, LLP, practices at the intersection of immigration and labor law. He can be reached at jmonty@montyramirezlaw.com or 281- 493-5529. ✤