DOJ States That Replacing U.S. Workers with Temporary Contract Workers May Constitute Unlawful Discrimination

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently released a Technical Assistance Letter (TAL) with guidance on replacing U.S. workers with temporary contract workers. The specific question was whether a violation of the anti-discrimination provision of the Immigration and nationality Act (INA) can be established where an employer replaces a protected U.S. Citizen employee with a non-protected contract employee provided by a third party company, rather than directly hiring a replacement worker from outside of the protected class. In its TAL, OSC responded that:

“Except in very narrow circumstances, an employer violates the anti-discrimination provision if it terminates workers or hires their replacements because of citizenship or immigration status. This is true regardless of whether the employer takes the discriminatory employment actions itself through direct hiring, or contracts, as a joint employer, with an outside agency to implement its discriminatory staffing plan. Whether an employer has, in fact, violated the anti-discrimination provision through its use of contract workers will depend upon the facts of each case, including (1) whether there is evidence of intentional discrimination in the selection of employees for discharge or rehire, (2) the circumstances surrounding the selection of the third party staffing contractor, and (3) the extent to which the original employer could be considered a joint employer of the contract workers. In addition, nothing prevents the filing of a charge against the contractor for potential citizenship status discrimination, or prevents OSC from independently investigating the contractor for potential discrimination if OSC receives information indicating a possible violation.”

Regarding discriminatory intent, OSC clarified that to engage in unlawful citizenship status discrimination, an employer must have acted “because of” citizenship or immigration status.

OSC also pointed to specific examples of its enforcement efforts to stop unlawful employer preferences for temporary visa holders, which can be found on its website.

Employers are advised to consult with employment and immigration counsel before making significant hiring decisions relating to temporary foreign national workers, especially when the foreign national workers will be replacing U.S. workers.

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