Daily Labor Report Publishes Akin Gump Article on Avoiding Discrimination Claims When Employing H-1B Visa Holders

Akin Gump labor and employment partner Esther Lander and counsel Andrew Turnbull have written the article “Defending and Avoiding Citizenship Discrimination Claims When Using Staffing Firms with H-1B Visa Holders,” which was published in Bloomberg BNA’s Daily Labor Report. The article explores the growing trend by some U.S. companies of laying off existing workers and replacing them with H-1B visa holders—foreign workers who can be employed temporarily in specialty occupations.

The H-1B program, as Lander and Turnbull write, “was intended to serve employers that could not find skilled workers in the U.S. for certain positions.” Now, however, the program’s alleged abuse is being reviewed by federal agencies, including the departments of Labor and Justice. The authors also write that replaced workers are “taking aim,” with some filing suit in court. 

Lander and Turnbull offer tips to employers on how to avoid citizenship discrimination claims, warning them to “proceed cautiously.” They include:

  • Reviewing and documenting the legitimate business justifications for using staffing firms to replace employees.
  • Ensuring the criteria for layoff decisions are applied uniformly and that decision makers understand and can articulate the reasons for the decision.
  • Do not have laid off employees train their replacements.

To read the full article, please click here.