The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) within the Department of Justice has issued a letter that sheds light on the agency’s view of whether an employer commits unlawful discrimination if it terminates U.S. workers and hires contract workers with temporary work visas to perform their work.

The OSC is charged with enforcing the immigration statute’s anti-discrimination provision, which protects U.S. citizens and nationals, U.S. lawful permanent residents, refugees and asylees from being denied or deprived of employment “because of their real or perceived immigration or citizenship status.”

In the letter, OSC stated that “[e]xcept in very narrow circumstances, an employer violates the anti-discrimination provision if it terminates workers or hires their replacements because of citizenship or immigration status.” This principle applies regardless of whether an employer replaces a protected employee with a nonprotected contract employee by directly hiring the replacement itself or by contracting with an outside agency as a joint employer.

In determining whether the anti-discrimination provision has been violated, OSC evaluates the facts of each case and considers several factors, including:

  • Whether there is evidence of intentional discrimination in the selection of employees for discharge or rehire.
  • The circumstances surrounding the selection of the third-party staffing contractor.
  • The extent to which the original employer could be considered a joint employer of the contract workers.

The letter also explained that the immigration statute’s anti-discrimination provision only prohibits intentional discrimination, meaning that the employer must have acted “because of” citizenship or immigration status. However, the letter emphasized that intentional discrimination does not require animus or hostility toward the protected employee. OSC stated that the assessment of whether an employer has engaged in intentional discrimination depends on the facts of each case.

OSC clarified that it is possible to file a charge against a contractor for citizenship-status discrimination and that the agency has authority to independently investigate a contractor if it receives information regarding a possible violation. OSC also provided links to past settlement agreements with companies, as examples of the agency’s “enforcement efforts to stop unlawful employer preferences for temporary visa holders.”

The letter responds to a series of questions about the laws regarding citizenship-based discrimination. OSC frequently publishes letters in response to written requests for technical assistance, in an effort to educate the public.

BAL Analysis: This technical assistance letter does not constitute a binding legal opinion, but does provide general guidelines for employer compliance. Through this letter, the agency provides helpful insight into how it evaluates claims of potential citizenship discrimination. The letter also highlights enforcement efforts by the OSC and reaffirms the agency’s authority to investigate noncompliance.

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