On January 7, 2016,  IEEE-USA — the lobbying arm of the Institute of Electrical and Electronics Engineers — launched an on-line petition drive to place pressure on The U.S. Department of Justice Office of Special Counsel for Immigration-Related Discrimination to investigate U.S. employers who have outsourced IT functions performed by U.S. workers to foreign workers employed in the U.S. and abroad either directly or indirectly through IT contractors.  

Patrick Thibodeau, a reporter for Computerworld (US), broke the story of the petition drive last week in his on-line column — linking the IEEE’s campaign to a December 22, 2015  Technical Advisory Letter (TAL) issued to IEEE-USA lobbyist, Bruce Morrison.   Mr. Morrison had written to the OSC requesting responses to a number of hypothetical outsourcing scenarios that OSC largely ignored in framing its response.  Instead, the OSC TAL merely acknowledged the legal truism that an employer violates the prohibition on citizenship status discrimination contained in Section 274B of the Immigration Reform and Control Act of 1986, as amended, ”if it terminates workers or hires their replacements because of citizenship or immigration status.” 

The OSC went on to observe in the TAL that whether or not an outsourcing event triggers discrimination liability depends upon upon the facts of each case, 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. The full text of the TAL can be found at http://www.justice.gov/crt/file/801721/download.  Significantly, in the 25-year history of the citizenship status discrimination provision, no pattern or practice outsourcing complaint has ever ended in a judgment against the employer — principally because neither the Justice Department nor any private complaint has ever been able to prove intentional discrimination based solely on citizenship status. 

One week into the IEEE-USA campaign, only 95 individuals have signed the petition, posted at https://www.change.org/p/attorney-general-of-the-united-states-stop-h-1b-discrimination-against-americans?recruiter=460476742&utm_source=share_petition&utm_medium=copylink – a less than impressive showing for an organization that boasts of being the world’s largest professional association for the advancement of technology. 

Nevertheless, given the nativist rhetoric espoused by certain Presidential contenders, recent Congressional interest in the outsourcing issue, and the existence of two major class action suits based on claims of race and national origin discrimination against prominent IT staffing companies, it would not be wise to ignore the threat of litigation.   The parties to any prospective outsourcing transaction that will result in the layoff of U.S. workers would be well advised to consult with counsel knowledgeable of the legal standards governing the adjudication of potential discrimination claims brought under U.S. law to ensure that the transaction is properly structured and administered.