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In the wake of the economic downturn resulting from the COVID-19 pandemic, government investigations into perceived preferential treatment of foreign workers by U.S. employers is expected.

At-risk companies include those in industries that typically employ a higher number of foreign workers under H-1B, H-2A and H-2B visas, from technology and consulting to hospitality and food production/agriculture. The risk is greater for those companies that have also implemented reductions in force, furloughs, salary reductions or similar measures in response to the COVID-19 crisis.

In April, the U.S. Department of Justice celebrated the three-year anniversary of the president’s 2017 Buy American and Hire American executive order and issued a press release “reaffirming its commitment to fight discrimination against U.S. workers.” The press release emphasizes the mission of protecting U.S. workers from discrimination in the workplace and attacking policies that favor foreign workers given the impact of COVID-19 on the U.S. economy.

Since the president’s 2017 order, 39% of citizenship status discrimination actions settled by the DOJ have focused on protecting U.S. workers from discrimination by U.S. employers who allegedly favored foreign workers. This article will provide an overview of the relevant law and penalties, the evolution of enforcement of the anti-discrimination provisions against U.S. employers, and steps U.S. employers should take to mitigate risk.

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Special thanks to the authors, Ginger Partee and Matthew Gorman.


This article was originally published in Law360.