Leon Fresco is an attorney at Holland & Knight's Washington, D.C., office and Nathan A Adams IV is a partner in Holland & Knight's Tallahassee office
The U.S. Department of Justice (DOJ) announced on Sept. 28, 2017, that the newly formed Immigrant and Employee Rights Section (IER) of the Civil Rights Division filed a lawsuit against an agricultural producer headquartered in Loveland, Colo., for allegedly discriminating against U.S. workers in violation of the Immigration and Nationality Act (INA).
The complaint alleges that the agricultural producer discriminated against at least three U.S. citizens by refusing to employ them as seasonal technicians in 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.
The complaint was filed with the Office of the Chief Administrative Hearing Officer, a specialized administrative court that Congress created to resolve such claims. In addition, the complaint seeks back pay on behalf of the workers, civil penalties and other remedial relief to correct and prevent discrimination.
The DOJ 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.
It is important that all employers who currently use, or intend to use, legal foreign worker programs to hire legal foreign workers, conduct informed assessments of their hiring practices with the assistance of legal counsel so that they do not face similar actions from the DOJ. Moreover, it is important that if an employer is being investigated by the DOJ for its hiring practices, that it hire skilled counsel who has experience in these matters to best protect their interests.
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