Can Favoring Foreign Hires Result in Fines?

Earlier this year, the U.S. Department of Justice (DOJ) promised to crack down on what it calls discrimination against U.S. workers who are being passed over in favor of temporary foreign workers. They recently made good on that promise in New Mexico.farmThe DOJ recently announced a settlement with Carrillo Farm Labor, LLC, a New Mexico onion farm
Following an investigation into allegations by two U.S. citizens that they had been rejected in favor of workers from Mexico, Carrillo agreed to pay $5,000 in fines and comply with ongoing training and reporting requirements. In a separate but related agreement, Carrillo agreed to pay $44,000 in lost wages to five other U.S. workers.

Abuse of Visa Programs as Discrimination

Carrillo brought the foreign workers into the country under the H-2A visa program, which is intended to help employers fill temporary agricultural jobs with foreign workers when there aren’t enough U.S. workers available. But some employers abuse the visa process by using it to hire foreign workers despite the availability of U.S. laborers.
In a warning to employers issued earlier this year in the context of H-1B visa abuse, the DOJ said it “is wholeheartedly committed to investigating and vigorously prosecuting” claims of discrimination against U.S. workers. H-1Bs are nonimmigrant visas used to recruit highly skilled foreign workers for specialty occupations, and as with H-2As, abuse sometimes occurs.

Race and National Origin Discrimination

The DOJ is enforcing visa abuse under the antidiscrimination provision of the Immigration and Nationality Act (INA). But the Equal Employment Opportunity Commission (EEOC) has its own ax to grind with employers that show a preference for Mexican workers.
The EEOC has filed suit against Marquez Brothers International, Inc., claiming its actions favoring Hispanic applicants over all others constitute discrimination under Title VII of the Civil Rights Act of 1964. The EEOC alleges that the company discouraged non-Hispanics from applying for jobs and asked applicants whether they speak Spanish even though speaking Spanish isn’t a job requirement.

What Employers Can Do

You can protect your company against EEOC enforcement actions by implementing policies that ensure equal opportunities for all job applicants and employees. And because the DOJ has stated that it will focus on enforcement going forward, if you employ foreign workers on visas, it’s important to be prepared for an agency investigation by reviewing the document retention requirements for each type of visa you use, informing your managers of the possibility of an outside audit, and undertaking the necessary internal audits to ensure that your hiring and compensation policies are consistently applied to all employees.
This article first appeared in New Mexico Employment Law Letter.

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