Palmetto Beach Hospitality, LLC is a “full-service hospitality management company that provides hotel and restaurant management, specialized in the supply of well-groomed, experienced full-time and seasonal staff in the hospitality industry.” Palmetto promises its clients it will take the time to understand their specific job requirements and fulfill their staffing needs with “top talent.” Recently, the U.S. Department of Justice discovered that the top talent Palmetto promises its clients is not an “innovative database of top talent,” but rather foreigners who can obtain H-2B visas; American workers need not apply.
In a letter dated July 5, 2017, the U.S. Department of Justice’s (DOJ) Civil Rights Division, Immigrant and Employee Rights Section (IER) informed Palmetto that it had “initiated an independent investigation, DJ# 197-67-56, to determine whether Palmetto preferred hiring temporary, nonimmigrant, visa holders over U.S. workers based upon their citizenship status in violation of the Immigration and Nationality Act’s anti-discrimination provision, 8 U.S.C. Subsection 1324b.” At the conclusion of the investigation, IER determined that reasonable cause exists to believe that Palmetto discriminates against Americans.
Palmetto engaged in a pattern or practice of discriminatory recruitment and hiring based on citizenship status by preferring to hire H-2B visa workers for housekeeping positions instead of qualified, available U.S. workers, in violation of 8 U.S.C. Subsection 1324b(a)(1).
The regulations that govern the H-2B visa program require employers to recruit and hire available and qualified American workers before they receive permission to hire temporary, foreign workers. Palmetto ignored applications it received from qualified American workers opting instead to hire foreigners via the H-2B visa program.
The IER’s findings motivated Palmetto to enter into an Agreement with the DOJ to settle the matter before it metastisizes into a lawsuit. The salient points of the Agreement are as follows:
- Palmetto shall pay a civil penalty to the U.S. Treasury of $42,000.
- Palmetto is required to set aside a “back pay fund” of $35,000 to compensate qualified individuals who sought employment.
- Palmetto shall post a job advertisement (or comparable notice of employment opportunity) on a job posting website and in at least two (2) physical locations. The job announcement must list each hotel or physical address where Palmetto intends to supply workers. Palmetto must also arrange for and describe a procedure for applicants to apply in person.
- Palmetto must retain a copy of every job application and resume it receives from an American.
- When the company uses the H-2B program, it has to retain a written record of the action(s) it took concerning each application and resume it received for its job postings.
The actions the DOJ took to correct the discriminatory practices of Palmetto are necessary and a welcome change from previous administrations who never enforced the regulations associated with visa programs. However, the only effective cure for the abuse of visa programs that favor foreign workers over American workers is the dissolution of every visa that allows companies to discriminate against Americans.