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DISCRIMINATION AGAINST AMERICAN WORKERS IS A GROWING PROBLEM

It’s a sad fact that many companies in our country discriminate against American workers in favor of cheaper foreign temporary labor. In fact, the U.S. Department of Labor released a 2018 job report showing that while employment for foreign workers in the U.S. increased by 3%, employment for American workers increased a little less than 1.5%.  To combat this disturbing trend, on August 1, 2018, the United States Department of Justice joined forces with the Unites States’ Departments of Civil Rights Division and Labor to announce the agencies’ joint effort to target companies that exhibit “unlawful discrimination” against American workers by hiring foreign labor. These employers often hire cheap foreign labor through the H-1B, H-2B and L-1 visa programs. These visa programs are briefly described as follows:

  • H-1B visas are issued to foreign workers who can fill positions so “specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.” Foreign computer programmers serve as a common example of those who have been issued a H-1B visa.
  • H-2B visas allow U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs where there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.  Examples of these may be persons filling housekeeping positions for companies operating in the travel and leisure industry.
  • L1 visas permit an employee of an oversea subsidiary, parent, affiliate or branch office of a U.S. company to transfer to work in the U.S. for that same company for at least one year out of the last three years. The employee must have worked as a manager, executive, or specialized knowledge worker for this time.

National origin discrimination includes discrimination against American workers in favor of foreign workers. See, e.g., Fortino v. Quasar Co., 950 F.2d 389, 392 (7th Cir. 1991) (stating that Title VII protects Americans from discrimination in favor of foreign workers); Fulford v. Alligator River Farms, LLC, 858 F. Supp. 2d 550, 557-60 (E.D.N.C. 2012) (finding that the plaintiffs adequately alleged disparate treatment and hostile work environment claims based on their national origin, American, where the defendant treated them differently, and less favorably, than workers from Mexico); Thomas v. Rohner-Gehrig & Co., 582 F. Supp. 669, 674 (N.D. Ill. 1984) (holding that “a plaintiff discriminated against because of birth in the United States has a Title VII cause of action”). In EEOC v. Hamilton Growers, Inc., No. 7:11-cv-00134-HL (M.D. Ga. filed Oct. 4, 2011), the EEOC alleged that African American workers were regularly subjected to different and less favorable terms and conditions of employment as compared to workers from Mexico. In December 2012, Hamilton Growers, Inc. agreed to pay $500,000 to the workers to settle the case. See Press Release, EEOC, “Hamilton Growers to Pay $500,000 to Settle EEOC Race/National Origin Discrimination Lawsuit”, (Dec. 13, 2012). There are many other examples of U.S. companies discriminating against American workers in favor of foreign visa workers.

On August 30, 2017, the U.S. Department of Justice ordered Barrios Street Realty Company of Lockport, La., to provide payment to a group of American workers who were discriminated against in favor of H-2B workers. According to a March 2016 press release from the Justice Department, the firm knowingly and illegally hired temporary foreign workers despite there being 73 qualified Americans willing to do the job.

On August 21, 2018, the U.S. Labor Department has reportedly found that Cisco Systems discriminated against U.S. workers in favor of foreign visa holders. Bloomberg Law reported that investigators with the department’s Office of Federal Contract Compliance Programs found that the San Jose-based company hired immigrant visa holders over U.S. citizens for similar jobs.

On September 18, 2018, the Justice Department reached a settlement agreement with Palmetto Beach Hospitality LCC (Palmetto), a company that provides housekeeping services to hotels in the Myrtle Beach, South Carolina area.  The agreement resolves the Department’s investigation into whether Palmetto unlawfully denied employment to qualified and available U.S. workers because it preferred to hire temporary foreign workers with H-2B visas.  This was the fourth settlement under the Civil Rights Division’s aforementioned initiative aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of temporary visa workers.

The New Jersey Law Against Discrimination (NJLAD) seeks to protect American workers.  This is because like federal Title VII laws it equally prohibits discrimination “because of race, creed, color, national origin ….”   N.J.S.A., 10:5-3 (emphasis added); N.J.S.A., 10:5-12(a). Courts employ the Title VII evidentiary framework and standard of review when analyzing claims under the NJLAD.  Iadimarco v. Runyon, 190 F.3d 151, 164 (3d Cir. 1999); See also Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 570 A.2d. 903, 906-907 (N.J. 1990) (Federal law dictates NJLAD analysis)..

If you are American worker who believes you were discriminated by your current or former employer in favor of cheaper foreign temporary labor, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help. At Mashel Law, we are dedicated to protecting the rights of New Jersey workers.