By: Bruce Buchanan, Sebelist Buchanan Law

OCAHO Finds Respondent is not an Employment Agency

In Heath v. Asta CRS, Inc., 14 OCAHO no. 1385 (Jan. 2021), the Office of the Chief Administrative Hearing Officer (OCAHO) found insufficient evidence to establish Respondent, Asta CRS, was an employment agency; thus, it denied the Motion to Dismiss the national origin claim.

In this case, Robert Heath filed a complaint with OCAHO alleging Asta CRS discriminated against him based on his citizenship status and national origin in violation of Immigration and Nationality Act (INA) 8 U.S.C. §1324b. Thereafter, Asta CRS filed a motion to dismiss Complainant’s national origin claim.

Asta CRS argues OCAHO may not consider national origin claims alleged to have occurred by an employment agency. Specifically, 8 U.S.C. § 1324b(a)(2), contains an exception at § 1324b(a)(2)(B), which expressly excludes “any discrimination because of an individual’s national origin that comes within section 703 of the Civil Rights Act of 1964 (Title VII), which states it does not apply to acts of discrimination by an employment agency because of an individual’s national origin. Additionally, Williams v. Lucas Associates, 1 OCAHO no. 254, 1628, 1632 (1990), held “[e]mployment agencies are not persons or entities covered by IRCA with regard to claims of national origin discrimination.”

To decide whether Asta CRS is an “employment agency” within the meaning of Title VII, and if so, whether it is being sued in its capacity as an employment agency or as an employer, one must determine whether it ‘regularly undertakes with or without compensation to procure employees or to procure for employees opportunities to work, and second, to determine whether it does this for an “employer” as that term is defined in Title VII.” Wilborn v. S. Union State Cmty. Coll., 720 F. Supp. 2d 1274, 1290 (M.D. Ala. 2010). Further, whether a worker assigned by a staffing agency is an employee of the agency for purposes of the statutory definition of employer is a matter analyzed by common law agency principles. See Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003).

Asta CRS submitted an affidavit from its Chief Technical Officer who states it “is a consulting and staffing company that recruits applicants for potential employment in the Information Technology field and Asta regularly procures prospective employment opportunities for its clients.”

Heath argues Asta CRS performs a dual role - the role of an employer by placing their employees at the worksite address of Asta CRS’s clients while under supervision of the Asta CRS’s client but on Asta CRS’s payroll and performing duties of a traditional employment agency by recruiting employees that immediately become employees of their client employer.
OCAHO found the complaint met the low pleading threshold for OCAHO cases even though “the complaint is not a model in clarity.” OCAHO stated even if it considered the Asta CRS’s affidavit, Asta CRS’s barebones affidavit does little to answer the issue. It describes itself as a consulting and staffing company and then parrots in a conclusory fashion the definition of “employer.” Lastly, Asta CRS failed to address whether the employers with whom it works meet the definition of “employer” themselves. Thus, OCAHO denied Asta CRS’s Motion to Dismiss.

If you want to know more information on immigration-related discrimination and immigration compliance, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at