Trump Could Turn to DOJ to Protect U.S. Workers From Bias

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By Laura D. Francis

A small office within the Justice Department could wind up being President Donald Trump’s major tool for advancing his “hire American” goals.

The Immigrant and Employee Rights section of the DOJ’s Civil Rights Division enforces the Immigration and Nationalty Act’s anti-discrimination provision, 8 U.S.C. §1324b. The law prohibits discrimination on the basis of citizenship status or national origin in hiring, firing or recruitment, or referral for a fee.

The law protects immigrants and U.S. citizens alike, Maggie Murphy of Jackson Lewis in Austin, Texas, told Bloomberg BNA.

And the IER office likely will focus at least some investigations on discrimination against U.S. citizens, Murphy said April 19. “I think it’s just a matter of time,” she said.

The office used to be “notorious for ignoring complaints by American workers,” Matt O’Brien, director of research for the Federation for American Immigration Reform, told Bloomberg BNA April 25. But the Trump administration has sent a “pretty strong signal” that “they intend to enforce the law as written,” he said.

‘Hire American’ Executive Order

On April 18, the president signed an executive order establishing a “hire American” policy. It asks the heads of various agencies, including the attorney general, to come up with regulations and policies to ensure U.S. worker protections in the immigration system.

Even before the executive order was issued, the Trump administration wasn’t shy about warning employers not to discriminate against U.S. workers, particularly in the context of the H-1B visa program. The temporary visas are for skilled foreign workers in “specialty occupations.”

Around the time employers started applying for H-1B visas in early April, the departments of Justice, Homeland Security and Labor indicated that they’ll be watching for fraud and discrimination. U.S. Citizenship and Immigration Services also set up an email address where workers can send tips and complaints about employers’ use of the H-1B program.

“We know IER is committed to taking these seriously,” Murphy said of tips and complaints.

So far in 2017, 60 percent of IER investigations that have resulted in settlements were launched following a complaint by an affected worker. And there’s already been one settlement this year of claims of discrimination against U.S. citizens.

Not Illegal?

The information technology consulting industry is the epicenter of U.S. worker displacement. The high-profile cases of IT workers at Southern California Edison and Walt Disney World being laid off and replaced by H-1B workers drew outcry from lawmakers and politicians. In both cases, the companies contracted out their IT functions to consultants that had hired H-1B workers.

But it appears that no laws were broken. The Labor Department investigated the Southern California Edison case and found no H-1B program violations. And a federal judge in Florida threw out a Racketeer Influenced and Corrupt Organizations Act case brought by former Disney workers against the company and the consultants with which it contracted.

The question thus becomes how can the administration protect U.S. workers through guidance and shifts in priorities, Eileen Scofield of Alston & Bird in Atlanta told Bloomberg BNA April 21.

“This administration is unique in two ways,” said O’Brien of FAIR, which supports lower immigration levels. The administration understands that there has been selective enforcement and a refusal to enforce the laws on the books, he said. But it also “clearly stated its America first approach” and “wants to ensure that it’s using all the tools at its disposal to make the economic situation better for Americans,” he said.

Trump’s executive order is like a “lion roaring,” Scofield said. The order gives few specifics, making it appear that the purpose is the roar itself, she said.

And that’s where the IER comes in.

‘Bigger Fishing Expedition’

The IER formerly was known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices. It has broad investigatory authority, and a regulation issued at the end of the Obama administration expanded that authority even further, Scofield said. The new regulation allows for a “much bigger fishing expedition,” she said.

For example, the IER could review labor condition applications, which must be filed with the DOL to hire an H-1B worker. Those reviews could be used as grounds for an investigation into discrimination against U.S. citizens, Scofield said. And investigations tend to involve requests for numerous documents, including lists of people who have been hired, lists of applicants, hiring policies and corporate structure, she said.

“That request alone would scare people,” Scofield said. “If you want to roar, it’s an effective roar.”

And “you have a very short time frame in which to respond,” Murphy said. If your response isn’t accurate or complete, you have “very little room” to ask for leniency, she said.

U.S. Workers Could Have Easier Time in Court

It’s possible the DOJ broadens the regulations even further, said John Miano, a New Jersey attorney who’s representing displaced American IT workers.

The regulations still require intent, even though the immigration law doesn’t require it, he told Bloomberg BNA April 25. New regulations could allow for a disparate impact case--where U.S. workers who are replaced with foreign workers have an easier time proving discrimination than if they had to show that the employer really intended to replace them with foreign labor, he said.

“This has become an organized effort to exclude Americans,” specifically in the IT industry, Miano said. The DOJ just needs the right person to bring the right case with the right evidence, he said.

Proof in Publicity

“It’s not about proving” that discrimination actually happened, Scofield said. “It’s about the soundbites” and “beating the chest and roaring,” she said. Investigating an employer for discrimination against U.S. citizens and reaching a settlement agreement--even where the employer doesn’t admit any liability--is an “easy way to be able to say look what we’ve done” to advance the president’s agenda, she said.

The IER historically has filed few lawsuits, and in most cases settles with the employers it investigates, making those settlement agreements public.

A DOJ spokesman declined to comment on whether the agency plans to increase investigations of discrimination against U.S. workers.

But anecdotally, investigations appear to have increased, Scofield said. And the IER is asking more and more for records of job applications, she said.

“That dovetails in quite nicely with this current approach” of making sure U.S. workers aren’t being passed over for jobs that ultimately go to foreign workers on temporary visas, she said.

More Litigation?

But that approach could backfire with the recent increase in potential fines. “We’ll start seeing a lot more litigation” because employers won’t be as willing to settle, Murphy said.

“There’s a lot of misunderstanding out there” about how immigration programs work, she said. U.S. workers who feel they’ve been wronged likely will complain, but that doesn’t necessarily mean that illegal discrimination took place, Murphy said.

And with higher fines on the line, employers are going to be more willing to litigate and “really find out how far is this going to go,” she said.

At the same time, the threat of investigation could itself become a deterrent. “An employer is not required to sponsor a foreign national worker,” and some may adopt policies against sponsorship to avoid the risk of government enforcement, Murphy said.

“An employer does potentially lose out on getting foreign talent if they choose a policy not to sponsor,” but that decision is perfectly legal, she said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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