Did the Justice Department Punish Microsoft for Prioritizing American Workers?

Microsoft settled with the Department of Justice (DOJ) regarding claims that the company discriminated against non-citizens during its hiring practices. The Justice Department claimed that Microsoft “discriminated against non-U.S. citizens based on their citizenship status during the early stages of Microsoft’s hiring process by asking them for unnecessary, specific immigration documents to prove they could work for the company without needing its sponsorship for work visas.” Reporting from Law360 indicated that Microsoft will pay about $17,400 in civil penalties, in addition to altering its hiring procedure.

This is a unique settlement. Technology giants like Microsoft are frequent abusers of the H-1B program and often come under scrutiny for discriminating against American workers in favor of foreigners. Earlier this year, Facebook settled with the DOJ over accusations that it hired H-1B workers over better-qualified Americans. Research shows that H-1B workers earn significantly less than Americans in the same role, leading to the abuse of the H-1B program by large corporations.

This case is the inverse of the norm. Instead, the DOJ appears to punish Microsoft for making it more difficult for foreign workers to obtain a job at the tech giant. The crux of the DOJ’s case against Microsoft is the company’s requirement that applicants provide copies of their work authorization and other immigration documents. The release notes that the Immigration and Nationality Act (INA) “prohibits employers from asking for documents when not required or from limiting or specifying the types of valid documentation a worker is allowed to show to prove permission to work, because of a worker’s citizenship, immigration status, or national origin.”

To a layman, this sounds as if the DOJ punished Microsoft because the company was too diligent in confirming the legal work status of prospective foreign employees.

If that is the case, then this is a disappointing revelation. Too often, corporations rely on the H-1B, Optional Practical Training (OPT), and L-1 guestworker programs to discriminate against American workers. And despite occasional settlements, the DOJ is not as aggressive at cracking down on this behavior as it could – and should – be. Discriminating against applicants because of their national origin is illegal, but it is not clear that Microsoft is guilty of that in this case. Instead, it appears that they are guilty of trying their best to confirm that foreign applicants have eligible work authorization status.

Why is the DOJ discouraging such behavior? Despite Microsoft’s heavy use of H-1B applicants, they did their best here to ensure that applicants had work authorization documents and were otherwise squared away with the proper immigration authorities before advancing them through the hiring process. We should encourage this behavior – and crack down on abusers – rather than punish companies for trying to do the right thing.  

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