• U.S. Companies Discriminating Against U.S. Workers

    immigration and nationality actDOJ Cites U.S. Company for Violation of the Immigration and Nationality Act

    On September 28, 2017, the U.S. Department of Justice (DOJ) announced that the newly formed Immigrant and Employee Rights Section (IER) of the Civil Rights Division filed a lawsuit against a Colorado-based agricultural production company. The company, headquartered in Loveland, Colorado, allegedly discriminated against U.S. workers in violation of the Immigration and Nationality Act (INA).

    The complaint alleges that Crop Production Services Inc. (Crop Production) discriminated against at least three U.S. citizens by refusing to employ them as seasonal technicians in El Campo, Texas because the company allegedly preferred to hire temporary foreign workers under the H-2A visa program. The basis for the complaint is that the company allegedly imposed more burdensome requirements on U.S. workers than it did on H-2A visa workers to discourage U.S. citizens from working at the facility.

    According to the DOJ release, allegations suggest U.S. citizens had to complete a background check and a drug test before being permitted to start work with Crop Production, whereas H-2A workers were allowed to begin working without completing either test. The complaint also alleges that Crop Production refused to consider a limited-English proficient U.S. citizen for employment but hired H-2A workers who could not speak English. All of Crop Production’s 15 available seasonal technician jobs in 2016 went to H-2A workers instead of U.S. workers.

    The United States’ complaint seeks back pay on behalf of the workers, civil penalties, and other remedial relief to correct and prevent discrimination.  The complaint was filed with the Office of the Chief Administrative Hearing Officer, a specialized administrative court that Congress created to resolve such claims. 

    Immigration and Nationality Act (INA)

    The INA statute prohibits, among other things, citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation; and intimidation. Under the INA, it is unlawful for employers to intentionally discriminate against U.S. workers because of their citizenship status or to otherwise favor the employment of temporary foreign workers over available, qualified U.S. workers.  In addition, the H-2A visa program requires employers to recruit and hire available, qualified U.S. workers before hiring temporary foreign workers. 

    The DOJ’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, is responsible for enforcing the anti-discrimination provision of the INA.    

    Conclusion

    The Justice Department has made it clear that this is the first of many cases it intends to bring as part of its Protecting U.S. Workers Initiative, an initiative launched to target, investigate and bring enforcement actions against companies it asserts are discriminating against U.S. workers in favor of foreign visa workers.

    An experienced California employment lawyer can quickly answer your questions about the Immigration and Nationality Act. To discuss DOJ developments, or any of California’s discrimination laws, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.

    Additional Resources:

    Kingsley & Kingsley

    16133 Ventura Boulevard, Suite 1200
    Encino, California 91436
    Phone: 888-500-8469
    Local: 818-990-8300 (Los Angeles Co.)

     

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