Following President Trump's inauguration, and in response to his April 2017 "Buy American, Hire American" Executive Order, various agencies of the federal government have announced enhanced efforts to protect U.S. workers from discrimination. For example:
U.S. Department of Justice ("DOJ"): In February 2017, the DOJ's Civil Rights Division launched its "Protecting U.S. Workers Initiative." This initiative is aimed at targeting, investigation, and bringing enforcement actions against employers that discriminate against U.S. workers in favor of foreign workers.
U.S. Department of Labor ("DOL"): In April 2017, the DOL announced plans to protect U.S. workers from discrimination in connection with the hiring of foreign workers through the H-1B program. The DOL promised to use its existing authority to investigate H-1B program violators, to consider making changes to the required labor condition application process, and to engage stakeholders as to how the H-1B program might be changed to improve protections for H-1B workers.
U.S. Department of State ("DOS"): In October 2017, DOJ and DOS announced that they have formalized an information sharing partnership aimed at protecting U.S. workers from discrimination and combatting fraud by employers in their use of visa programs to employ foreign workers.
In addition to these announcements and initiatives, some enforcement actions directed at protecting the rights of U.S. workers are also underway. For example, in September 2017, the DOJ filed a lawsuit against Crop Production Services Inc. alleging that it discriminated against at least three U.S. citizens by refusing to employ them as seasonal technicians in El Campo, Texas. The DOJ alleged that the company preferred to hire temporary foreign workers under the H-2A visa program and that it imposed more burdensome hiring requirements on U.S. citizens (such as background checks and drug tests) than it did on H-2A visa workers, in order to discourage U.S. citizens from working for the company. According to the complaint, all of Crop Production's 15 available seasonal technician jobs in 2016 went to H-2A workers instead of U.S. workers. Similarly, in August 2017, the DOJ settled a case with Barrios Street Realty LLC, after the company agreed to pay over $100,000 to 12 U.S. workers who had claimed to be the victims of unlawful discrimination. The DOJ alleged that the company engaged in citizenship status discrimination in hiring against U.S. workers who applied for positions as sheet metal roofers or laborers, due to a hiring preference for foreign workers under the H-2B visa program.
What's Next? While it's hard to know for sure what impact these various agency initiatives will have, one thing is clear: it is more important than ever for employers to steer clear of any policies or practices that encourage the hiring or retention of foreign workers over U.S. workers. Where an employer imposes obstacles to hiring U.S. workers (such extra hiring requirements applicable to U.S. workers only) or has policies that favor the retention of foreign workers over U.S. workers (such as laying off U.S. workers while retaining foreign workers), it can expect to face significant legal challenges in light of these "Hire American" initiatives.
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