Wolfsdorf Rosenthal LLP

OSC Opines on Terminating U.S. Workers and Hiring Contract Workers


An individual recently received a response to a question about whether an employer may terminate U.S. workers and rely instead on contract workers with temporary work visas. Bruce A. Morrison, chairman of the Bethesda, Maryland-based Morrison Public Affairs Group, also asked whether a violation can be established where an employer replaces a protected employee with a nonprotected employee provided by a third-party company rather than by directly hiring a replacement from outside of the protected class. The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U.S. Department of Justice, responded on December 22, 2015.

Among other things, OSC noted that citizenship status discrimination occurs when protected individuals are denied or deprived of employment because of their real or perceived immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination under the Immigration and Nationality Act (INA), the OSC noted, adding that the INA grants OSC jurisdiction over citizenship status discrimination claims involving employers with four or more employees.

OSC explained that except in very narrow circumstances, an employer violates the antidiscrimination provision if it terminates workers or hires their replacements because of citizenship or immigration status. This is true, OSC said, regardless of whether the employer takes the discriminatory employment actions itself through direct hiring or contracts as a joint employer with an outside agency to implement its discriminatory staffing plan. Whether an employer has violated the antidiscrimination provision through its use of contract workers will depend upon the facts of each case, OSC noted, including: (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. In addition, OSC pointed out that nothing prevents the filing of a charge against the contractor for potential citizenship status discrimination, or prevents OSC from independently investigating the contractor for potential discrimination if OSC receives information indicating a possible violation.

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