The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently issued an opinion letter clarifying that employers that carry out discriminatory employment practices, even indirectly by way of a third-party labor contractor, may still be held liable for civil penalties under the anti-discrimination provisions of the Immigration and Nationality Act (INA).¹

OSC is the arm of the Department of Justice (DOJ) charged with enforcing provisions of the INA prohibiting: (1) citizenship status or national origin discrimination in hiring, firing, or recruitment or referral for a fee; (2) unfair documentary practices during the employment eligibility verification, Form I-9, or E-Verify process; and (4) retaliation or intimidation of individuals seeking redress under the INA.² 

The OSC issued its opinion letter in response to a question of whether an employer may terminate U.S. workers and rely on contract workers with temporary work visas to perform the same work previously completed by the U.S. workers. Although the OSC did not directly answer this question, it did note that an employer generally violates the INA’s anti-discrimination provisions if it intentionally terminates workers or hires their replacements because of citizenship or immigration status.

The OSC’s opinion letter also makes clear that even if the employer does not take the discriminatory action itself — and instead contracts with a third-party labor contractor that violates an anti-discrimination provision – that employer is subject to penalties, including payment of back wages and civil penalties, and may be required to hire or rehire aggrieved workers.³  In determining whether an employer engaged in discriminatory employment practices through its use of contract workers, the OSC considers the facts of each case and: (1) whether there is evidence of intentional discrimination in the selection of employees for discharge or rehire; (2) the circumstances surrounding the selection of the third-party staffing contractor; and (3) the extent to which the original employer could be considered a joint employer of the contract workers.

Employers must therefore be aware of their obligations under the INA’s anti-discrimination provisions, and should seek counsel as necessary when questions regarding the highly complex intersection of immigration and employment status arise.  In addition, employers are advised to educate themselves on the types of documentation involved in the federal form I-9 verification process, as certain forms of valid documentation may bear confusing expiration dates and immigration status designations.