DOJ Drops the Hammer on Employers Who Discriminate Against U.S. Workers

If employers are cheating, call the Protecting U.S. Workers Initiative — tell them Art sent you

By Andrew R. Arthur on March 23, 2020

The Department of Justice (DOJ) announced last week that it has reached a settlement with an employer who it claims violated section 274B of the Immigration and Nationality Act (INA) by preferring temporary nonimmigrant H2-B visa workers over qualified U.S. workers. The price: "$43,143 in civil penalties to the United States", and "up to $80,000 in back pay to affected U.S. workers." If you know such violations are occurring, DOJ wants to hear from you, too.

The employer in question is Hallaton Inc., which installs geosynthetic liners. They were targeted by the Immigrant and Employee Rights Section (IER) in DOJ's Civil Rights Division. Why does the Civil Rights Division have jurisdiction over immigration?

In the Immigration Reform and Control Act of 1986, right after Congress added the employer-sanctions provisions in section 274A to the INA (making the hiring of an alien who is unauthorized to work illegal), it included an anti-discrimination provision prohibiting "unfair immigration-related employment practices" against "protected individuals" (including certain aliens as explained below), section 274B of the INA.

The concern at the time was that employers would go overboard in screening potential employees and would discriminate against aliens who were authorized to work. In fact, as the summary for IRCA states, that law:

Requires the General Accounting Office (GAO) to submit to the Congress and to a specially created task force three annual reports regarding the operation of the employer sanction program, including a determination of whether a pattern of national origin discrimination has resulted. States that if the GAO report makes such a determination: (1) the task force shall so report to the Congress; and (2) the House and the Senate shall hold hearings within 60 days.

Terminates employer sanctions 30 days after receipt of the last GAO report if: (1) GAO finds a widespread pattern of discrimination has resulted from the employer sanctions; and (2) the Congress enacts a joint resolution within such 30-day period approving such findings.

Yeah, that didn't happen. Why? For one thing, section 274B(a)(6) of the INA provides:

A person's or other entity's request, for purposes of satisfying the requirements of section [274A(b) of the INA], for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1).

In other words, employers were forced to accept any document an employee offered that satisfied the employment-eligibility verification provisions of section 274A so long as they "reasonably appear[ed] to be genuine", or face the wrath of the federal government. As a law clerk, I drafted some of the leading decisions interpreting section 274B, and even I have no idea what Congress meant by that clause.

This scared off many would-be compliant employers, and gave unscrupulous ones an easy out. It also spawned an entire fraudulent-document industry for unauthorized aliens. Not good for a day's work on the Hill.

In any event, section 274B(a)(1) of the INA makes it an unfair immigration-related employment practice for most employers to discriminate against any potential employee (other than an illegal alien) in hiring because of that employee's national origin or, in the case of a "protected individual", because of that employee's "citizenship status".

Who is a protected individual? Under section 274B(a)(3) of the INA, they are U.S. citizens and nationals, lawful permanent residents, aliens lawfully admitted for temporary residence under IRCA's amnesty provisions (oh yeah, IRCA did that, too), and aliens admitted as refugees and granted asylum. If a citizen or national and one of these aliens is equally qualified, however, the employer can choose the citizen or national under section 274B(a)(4) of the INA. That said, however, those who are protected individuals pursuant to this provision are all considered "U.S. workers".

Back to the DOJ IER. It determined, after an investigation, that "Hallaton routinely discriminated against U.S. workers by failing to consider them for construction laborer positions" from at least December 1, 2017, until at least June 1, 2018. It explained:

Despite receiving over two dozen applications from available and qualified U.S. workers through the Maryland Workforce Exchange, Hallaton hired none of them. The company then sought and received permission to hire 63 H-2B visa workers for these jobs by claiming that it could not find qualified and available U.S. workers.

It is unclear from the press release how exactly IER determined that this misconduct was occurring, but it would not surprise me if one of those more than two dozen U.S. workers complained. That, in itself, if an important point: If a U.S. worker (citizen or authorized alien) believes that he or she was passed over for a job by an employer who then hired a temporary nonimmigrant worker instead, there is a place they can go: IER's Protecting U.S. Workers Initiative.

IER launched that initiative, "which targets, investigates, and brings enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers" in 2017. Hallaton is not a one-off target. The Protecting U.S. Workers initiative has thus far resulted in eight settlements, and provided U.S. citizens and aliens with work authorization access to $1.2 million in back pay and other relief, in addition to civil penalties paid to the government.

Employers will seek to obtain labor at the lowest cost that they can — that is simple economics. And some will cheat by bypassing otherwise qualified U.S. workers and petitioning for temporary foreign laborers. Will the Protecting U.S. Workers Initiative stop them from doing so? Maybe, but only if those who believe they have been discriminated against have a place to complain.

Now, thanks to IER, they do. If you are a worker, call IER's worker hotline at 1-800-255-7688. If you are an employer and know this cheating is occurring elsewhere, call IER's employer hotline at 1-800-255-8155. Tell them Art sent you.