Here’s a concern that may slip under your radar. Recruiting foreign workers who come to the United States via work visa programs requires carefully adhering to Title VII and other discrimination laws, just as if you were recruiting U.S. workers.
As the following case shows, you must make sure you (or your representative) aren’t pushing foreign workers into different visa programs based on sex or some other protected characteristic.
Recent case: Marcela Olvera-Morales is a Mexican citizen who was hired to work in the United States under the H-2B visa program. She subsequently sued, starting a class-action suit on behalf of herself and other similarly situated women who were hired to fill H-2B visa jobs when they were also qualified to work in H-2A visa positions.
Olvera-Morales claimed that getting an H-2A visa is preferable because it has greater benefits. She claimed that men had been recruited for H-2A positions, even though they had fewer qualifications than she had. That, she said, was evidence of sex discrimination.
The court let the case go forward. (Olvera-Morales v. International Labor Corporation, et al., No. 1:05-CV-00559, MD NC, 2008)
Final note: Immigration and visa lawsuits by foreign nationals are a growth industry for some attorneys. Because the same labor laws protect foreign workers as U.S. citizens, wage-and-hour and other discrimination cases are on the rise.
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