A federal lawsuit against Houston-based bus company Autobuses Ejecutivos LLC, d/b/a Omnibus Express, reminds U.S employers hiring foreign workers under the H-2B or other special worker visa programs to use care to ensure that they can prove that their need for foreign workers is not the result of recruitment and hiring practices that illegally discriminate against work-eligible members of the U.S. workforce already in the United States.
The Justice Department announced on August 6, 2013 that it and the Executive Office of Immigration Review’s Office of the Chief Administrative Hearing Officer (OCAHO) are suing Omnibus Express for allegedly violating the Immigration and Nationality Act’s (INA) anti-discrimination provisions by preferring to hire for bus driver positions temporary nonimmigrant visa holders on H-2B visas over work-eligible U.S. citizens, certain lawful permanent residents and other protected individuals.
H-2B Program Hiring Prohibited If Need Based On Illegal Discrimination
The H-2B program allows U.S. employers to bring foreign nationals to the United States to fill temporary nonagricultural jobs only when there are not enough U.S. workers who are able, willing or qualified to do the temporary work. While H-2B program hiring can be invaluable when a legitimate need exists, businesses contemplating or using the program need to be prepared to show their need to hire workers on H-2B visas is not the result of discriminatory hiring practices prohibited by the INA or other federal employment discrimination laws.
The INA generally protects work-eligible individuals in the United States, such as U.S. citizens, certain lawful permanent residents, refugees and asylees, from unlawful discrimination in hiring based on their citizenship status prohibiting employers from discriminating in hiring against these protected work-eligible workers based on their citizenship status.
Accordingly, while the H-2B program provides a valid opportunity to hire foreign workers consistent with the H-2B visa program requirements when in fact there are insufficient work-eligible, qualified applicants already in the U.S. to fill the position, employers hiring workers under the H-2B or other visa programs need to ensure that they are not inappropriately discriminating against U.S. citizens, permanent residents or other work-eligible individuals already in the U.S. in their recruitment and hiring practices when taking advantage of the H-2B program to hire workers.
In addition to the anti-discrimination provisions of the INA, hiring practices that discriminate in favor of hiring workers over other qualified applicants based on the respective citizenship, national origin, race or other protected status of the respective applicants or workers also can expose a business to liability under various other laws. In addition to suits brought by the Justice Department, prohibited discrimination by an employer under these other employment discrimination laws may expose a business to liability to actions brought by private litigants, the Equal Employment Opportunity Commission (EEOC), Office of Federal Contract Compliance (OFCCP) or other agencies, or both.
Omnibus Express Suit Highlights Risks Of H-2B Visa Hiring Need Based On Illegal Discrimination
The Justice Department complaint charges that Omnibus Express failed to fulfill this obligation. It claims that Omnibus Express violated the INA by actively discouraging or failing to consider the applications of many qualified U.S. citizens and other protected individuals between September 2012 to February 2013 while at the same time petitioning the U.S. Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) for permission to hire up to 50 foreign workers on H-2B visas. The Justice Department alleges that Omnibus Express violated the INA by hiring 42 H-2B workers during this period based on its representation to the DOL and USCIS that there were not enough qualified workers in the United States to fill the 50 bus driver positions when in fact, its practices illegally discriminated against work-eligible U.S. citizens, lawful permanent residents and other INA-protected individuals who could have filled the positions.
The Justice Department asks the court to redress these alleged violations of the INA by ordering Omnibus Express to pay back pay for injured parties and civil penalties prohibiting future discrimination by Omnibus Express, and ordering other injunctive relief.
INA Discrimination Prosecution Part Of Obama Administration’s Emphasis on Enforcing Discrimination Laws
Businesses also should keep in mind that the Justice Department’s prosecution of Omnibus Express for alleged illegal citizenship discrimination also is part of the Obama Administration’s larger agenda prioritizing the expansion of non-discrimination safeguards for protected classes and the enforcement of these non-discrimination laws.
Since Mr. Obama took office, the Administration has sought regulatory and statutory changes that expand the federal employment and other anti-discrimination for a broad range of groups. The Administration also continues to proactively seek to expand the individuals protected by these and other Federal anti-discrimination laws even as the Departments of Justice, Labor, Health & Human Services, Education, Housing & Urban Development and other federal agencies have expanded their investigation, prosecution and public outreach of these laws.
In light of these developments, businesses should recognize that this proactive anti-discrimination agenda makes it wise for private businesses and state and local government agencies to take greater care to prevent and position their organizations to defend against potential discrimination and retaliation claims under the INA and a broad range of other employment and other anti-discrimination laws.
While this activist agenda in the anti-discrimination law area merits tighter compliance and risk management for all organizations, government contractors or subcontractors particularly face heightened risk as a result of recent expansions to the reach and requirements of nondiscrimination requirements.
Act To Mitigate Citizenship, National Origin & Other Employment Discrimination Exposures
Accordingly, while the Omnibus Express particularly highlights the importance for businesses subject to U.S. law to use care before hiring foreign workers on H-2B or other special visas to ensure that they can demonstration the need for foreign workers does not stem from recruitment and hiring practices that illegally discriminate against applicants already in and eligible to work in the U.S. who would be qualified to fill those positions.
Furthermore, businesses should use care not to underestimate their exposure to liability from charges of illegal discrimination in violation of the INA or other federal employment discrimination laws. Prohibited discrimination against workers based on citizenship, national origin or other prohibited grounds exposes employers to private lawsuits by workers seeking damages, attorneys’ fees and costs, and other remedies. In addition to these private exposures, the suit against Omnibus Express shows that the readiness of the Justice Department to enforce the INA so that work-authorized individuals have equal access to employment in the United States free from prohibited discrimination based on citizenship.
Jocelyn Samuels, Acting Assistant Attorney General for the Justice Department’s Civil Rights Division affirmed this commitment in the announcement of the Justice Department suit against Omnibus Express, stating “We are committed to enforcing the INA so that work-authorized individuals have equal access to employment in the United States.”
Accordingly, all businesses should make the tightened risk management of their INA anti-discrimination risks part of a broader emphasis on the prevention and management of their organization’s discrimination exposures generally.
As part of these risk management efforts, organizations should:
- Review and update their understanding of current anti-discrimination rules under the INA and other laws;
- Evaluate the adequacy of and tighten existing practices and documentation to mitigate exposures with discrimination and other laws;
- Update and tighten management controls, investigation and other procedures to promote compliance with anti-discrimination policies and identify and mitigate exposures arising in the course of operations;
- Conduct well-documented periodic training on these and other anti-discrimination compliance and risk management practices; and take other actions to monitor and enforce compliance by staff, contractors and others with whom they do business.
For Help With Compliance & Risk Management and Defense
If you need help in auditing or assessing, updating or defending your organization’s compliance, risk manage or other internal controls practices or actions, please contact the author of this update, attorney Cynthia Marcotte Stamer here or at (469)767-8872.
Board Certified in Labor & Employment Law by the Texas Board of Legal Specialization, management attorney and consultant Ms. Stamer is nationally and internationally recognized for more than 25 years of work helping private and governmental organizations and their management; employee benefit plans and their sponsors, administrators, fiduciaries; employee leasing, recruiting, staffing and other professional employment organizations; schools and other governmental agencies and others design, administer and defend innovative compliance, risk management, workforce, compensation, employee benefit, privacy, procurement and other management policies and practices. Her experience includes extensive work helping employers implement, audit, manage and defend against employment and other anti-discrimination and anti-retaliation, union-management relations, wage and hour, and other labor and employment laws, other regulatory requirements, procurement, conflict of interest, discrimination management, privacy and data security, internal investigation and discipline and other workforce and internal controls policies, procedures and actions. The Chair of the American Bar Association (ABA) RPTE Employee Benefits & Other Compensation Committee, a Council Representative on the ABA Joint Committee on Employee Benefits, Government Affairs Committee, a member of the HR.com editorial advisory board, a past National Consultants Board Member and Region IV Chair for SHRM, past Legislative Chair for the Dallas Human Resources Management Association, and past Chair of the ABA Health Law Section Managed Care & Insurance Interest Group, Ms. Stamer works, publishes and speaks extensively on workforce and risk management, reengineering, investigations, human resources and workforce, employee benefits, compensation, internal controls and risk management, federal sentencing guideline and other enforcement resolution actions, and related matters. She also is recognized for her publications, industry leadership, workshops and presentations on these and other human resources concerns and regularly speaks and conducts training on these matters. Her insights on these and other matters appear in the Bureau of National Affairs, Spencer Publications, the Wall Street Journal, the Dallas Business Journal, the Houston Business Journal, and many other national and local publications.
You can learn more about Ms. Stamer and her experience, review some of her other training, speaking, publications and other resources, and register to receive future updates about developments on these and other concerns from Ms. Stamer here. For information about engaging Ms. Stamer for representation, training or other assistance, contact Ms. Stamer directly at (469) 767-8872.
If you found this update of interest, you also may be interested in reviewing some of the other updates and publications authored by Ms. Stamer including:
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©2013 Cynthia Marcotte Stamer, P.C. Nonexclusive license to republish granted to Solutions Law Press, Inc. All other rights reserved