The Employer's Legal Resource: "Hire American" Executive Order: Read the Fine Print
On April 18, 2017, President Trump signed his Executive Order on "Buy American and Hire American." It is important you read the fine print on this–like so many things these days that are reduced for the purposes of a hashtag.
This is an Executive Order. It does not apply to private businesses. It is not a law passed by Congress. It applies to the executive branch of the government only. Moreover, despite its title, it does not reflect a preference for hiring "Americans"–such a preference would be illegal. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based upon one's national origin.
If you were to read the text of the Executive Order, you will see it addresses the realities of our laws that prohibit national origin discrimination. In fact, it defines a United States worker to mean any employee who is (i) a citizen or national of the United States, (ii) an alien lawfully admitted for permanent residence, (iii) admitted as a refugee or granted asylum under the law, or (iv) an immigrant otherwise authorized by the immigration laws or the Attorney General to be employed in the United States.
In other words, the "Hire American" Executive Order is not written to demonstrate a preference for one person in the United States lawfully eligible to work over any other person in the United States lawfully eligible to work. Indeed, any Executive Order that purports to do so would be illegal. The Executive Order is written to encourage the executive branch not to send jobs outside our borders.
However, the title of the Executive Order can certainly mislead readers into wrongly believing that our executive branch is encouraging the hiring of "American" employees over other nationalities. That, of course, would be illegal. Private employers can be sued for such actions. It is important to read the fine print.
By Kristen L. Brightmire, KBrightmire@dsda.com