Some Virginia and Maryland employers who filed H-2B 2008 and/or 2009 labor certification applications have received letters from the U.S. Department of Justice Office of Special Counsel (OSC) in the past two weeks, notifying them that the Mid-Atlantic Regional Organizing Committee (MAROC) has filed a complaint against the employer. The complaint alleges that the company declined employment to a U.S. worker in favor of H-2B workers. The letters identify, by name, a Hispanic person who allegedly applied for a job at some point in October or November 2008 and was turned down by the employer. The letters outline a long list of documentary evidence the employer is requested to turn over to the OSC within a short period of time so that the OSC can investigate the complaint. A sample of the letter that was sent to these H-2B employers can be found online in the PLANET H-2B toolkit.
If you receive a letter, or have already received such a letter, please let us know. You will want to employ competent, legal counsel immediately; preferably one experienced with civil rights and OSC issues says Richard Lehr, attorney for PLANET who specializes in labor law.
MAROC’s parent union is the Laborers International Union of North America (LIUNA). At this time, it is not clear what LIUNA’s and MAROC’s objectives are in orchestrating the current OSC investigations. One objective may be to pressure contractors to take a neutral position on LIUNA’s efforts to unionize their workforce. Last year, LIUNA made claims of having among its membership “thousands” of U.S. workers who would be glad for H-2B employment. Both the Virginia and Maryland state workforce agencies — the Virginia Employment Commission (VEC) and the Maryland Department of Labor, Licensing and Regulation, (MDLLR) — require H-2B applicants or their agents to contact LIUNA as a condition of H-2B labor certification. We understand it resulted in no workers.
Whatever LIUNA’s and MAROC’s current objectives, it is vitally important that if your company receives a letter from OSC you take it seriously. OSC is the government agency charged with investigating “national origin discrimination,” which is a protected category under U.S. civil rights law, and its investigations are considered federal law enforcement actions. If a complaint letter is ignored, the employer could find itself held in contempt of court and have a default judgment, which carries possible criminal penalty consequence, entered against it.
This is another reason we all must work to fight the card-check legislation currently before the U.S. Congress. For additional information, send an e-mail to Tom Delaney at or call him at 1-800-395-2522.