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I-9 E-Verify Immigration Compliance

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  1. IER Settles Immigration-Related Retaliation Claim Against InMotion Software

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Immigrant and Employee Rights Section (IER) of the Department of Justice has reached a settlement with InMotion Software LLC (InMotion), a software developer and recruiter in Texas, resolving their investigation into whether the company violated the Immigration and Nationality Act’s (INA) anti-discrimination provision.

    Based on its investigation, the IER concluded InMotion retaliated against a work-authorized job applicant (Charging Party) after she protested InMotion’s requirement that she provides a Permanent Resident Card (green card) even though she had a valid employment authorization card issued by the USCIS. After the Charging Party complained that InMotion’s request constituted discrimination under the INA, InMotion removed her from its pool of candidates available for job placement. The INA’s anti-discrimination provision prohibits employers from retaliating against or intimidating workers because they have opposed employer conduct that may violate that provision or have participated in the IER’s activities to enforce it.

    Under the settlement agreement, InMotion will pay $3621, the maximum civil penalty for an instance of retaliation, to the U.S. government, remove any references to the investigation or settlement from the Charging Party’s personnel file, post notices informing workers about their rights under the INA’s anti-discrimination provision, provide all newly hired employees with a Lists of Acceptable Documents to provide with the I-9 form, train its staff, and be subject to departmental monitoring and reporting requirements for one year.

    Companies need to be aware of the laws relating to retaliation if an employee files an anti-discrimination claim or alleges such discrimination. For the answers to these issues and many others related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  2. Professor Flunks the Test

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Chief Administrative Hearing Officer (OCAHO) held, in Chellouf v. Inter American University of Puerto Rico, 12 OCAHO No. 1269 (2016) that the university did not retaliate against Linda Chellouf by discharging her from the faculty.

    Chellouf’s Years as an Instructor, Assistant Professor and Associate Professor

    Chellouf, a French national, holds a Doctor of Musical Arts from Eastman School of Music. Chellouf became employment on a temporary appointment as instructor in the Department of Fine Arts for the academic year 2006-2007. She was eligible for employment under an approved H-B visa. One year later, Chellouf received a temporary appointment as an assistant professor. This was renewed during the 2008-2009 academic year. In July 2009, she was promoted to a probationary associate professor and received a series of one year appointments for the academic years of 2009-2010 through 2012-2013.

    Labor Certification Process

    In 2013, the university began a process of labor certification to retain Chellouf as a permanent resident worker. The university started the required advertising process at that time, including two consecutive Sunday advertisements ion the newspaper, El Nuevo Dia. On May 14, 2013, Chellouf sent an email to the university’s attorney expressing her belief that the university was not properly advertising because it did not place an ad in a national professional journal.

    On August 1, 2013, the university provided her with another one-year appointment as a probationary associate professor for the 2013-2014 academic year. Chellouf declined to sign it because she had applied for a permanent position and promotion. On August 12, 2013, the university notified her that her evaluation of the sixth year of her tenure track had been approved for the academic year of 2013-2014.

    Chellouf’s Termination

    Despite not signing the August 1, 2013 contract, Chellouf continued her teaching duties. However, on October 16, 2013, she was notified that the university considered her to have “voluntarily resigned” because she had not signed the August 1 contract. The contract stated it was invalid on its terms after 15 days unsigned. Thus, Chellouf ceased her professor duties and her salary was not paid thereafter. A formal termination letter was signed by the University Chancellor on November 4, 2013, reiterating her employment had been terminated. The university paid Chellouf back wages from October 16 to November 4, 2013 and offered to pay her transportation costs back to France.

    OSC Charge and Complaint

    On March 10, 2014, Chellouf filed a charge with the Office of Special Counselfor Immigration-related Unfair Employment Practices (OSC) alleging the university violated Department of Labor regulations and discriminated against individuals protected by §1324b by advertising the position in a local paper rather than a national professional journal. OSC gave Chellouf a right-to-sue and she filed her complaint with OCAHO on October 7, 2014 alleging she was retaliated against for opposing the university’s recruitment practices for foreign faculty.

    Parties’ Arguments and OCAHO’s Decision

    The university argued Chellouf did not even make out a prima facie case of retaliation because she did not engage in protected activity. Specifically, her May 14, 2013 email did not allege discrimination, just the accuracy of the labor certification process. Thus, the university argued there is no factual basis of a causal relationship between the email and her termination. Even if Chellouf somehow met her standard, the university asserted the reason for her discharge was Chellouf’s failure to sign the August 1, 2013 employment contract- a legitimate nondiscriminatory reason.

    Chellouf asserted she did not abandon her employment and she was terminated for no legitimate reason. But Chellouf did not give a plausible reason for her failure to sign the contract. Rather, Chellouf stated she wanted a permanent tenure-track position but ignored the fact she was not eligible for such at that time. Finally, she returned to her argument about the university’s advertising practices.

    OCAHO agreed with the university’s positions – Chellouf had not engaged in protected activity and even if she had, the university offered a legitimate non-discriminatory reason for her discharge. OCAHO referred to Chellouf’s argument as “wishful thinking” but laments there were “no winners in this case” because the university lost a “valued faculty member.”

    Takeaways

    In order for an employee to be retaliated against, the employee must have engaged in protected activity. A general complaint is insufficient.
  3. OSC Settles Retaliation Claim

    By Bruce Buchanan, Siskind Susser

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    The Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), has reached a settlement agreement with North American Shipbuilding LLC, a company located in Larose, Louisiana. The agreement resolves a complaint filed with the OSC, claiming that the company retaliated against an individual for filing a charge of discrimination with OSC.

    Based on its investigation, the OSC determined that North American Shipbuilding retaliated against an employee by barring him from the company’s business facilities. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from intimidating, threatening, coercing or retaliating against workers who file a charge under the law.

    Under the terms of the settlement agreement, the company has agreed to pay a civil penalty of $1,750 and $15,000 in back pay to the injured party. The company also has agreed to have certain personnel attend OSC’s training on the anti-discrimination provision of the INA through a remote webinar presentation, to revise company policies to avoid retaliation in the employment eligibility verification process, and to post for one year an OSC poster – “If You Have the Right to Work.”

    Although retaliations cases are quite common in EEOC matters, they have been uncommon in OSC matters. However, the lesson in all types of immigration-related and employment-related cases is the same – do not engage in retaliation against one who files a charge against the employer. All agencies regard retaliation cases as quite serious and could result, as shown in this case, with liability for back pay and civil penalties.
  4. Retaliation is an Issue in Immigration Law, Too; by Bruce Buchanan, Siskind Susser

    For years, employment law lawyers have seen that an employee’s retaliation claim against an employer for filing a charge, complaint or lawsuit, is often a greater problem than the original issue which precipitated it. Recently, in Breda v. Kindred Braintree Hospital, 10 OCAHO no. 1202 (2013), a retaliation claim in an immigration-related unfair employment practice setting was addressed by OCAHO.

    Kindred Braintree Hospital LLC entered into two agreements with John A. Breda, M.D. in 2009, for performing overnight emergency services and scheduling other physicians for overnight emergency services. In April 2010, Kindred notified Breda that it was terminating both agreements.

    The case began when Breda filed a charge with the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices in June 2010, alleging Kindred discriminated against him based on his U.S. citizenship by terminating the agreements and replacing him with an H-1B visa holder. OSC advised Breda that he could file a complaint with OCAHO. Breda declined to do so and filed an action in Massachusetts state court. Kindred filed a counterclaim alleging the original OSC charge was frivolous and sought to recoup its attorney’s fees and expenses as well as seek damages from Breda. The State Court dismissed Kindred’s counterclaim.
    Breda filed a second OSC charge alleging Kindred’s counterclaim was made in retaliation for Breda filing the original OSC charge. Breda’s second charge proceeded to litigation before OCAHO.

    Kindred asserted OCAHO did not have jurisdiction over the second charge alleging retaliation. OCAHO disagreed and found jurisdiction because 8 U.S.C. §1324b(a)(5) states it is “an unfair immigration-related employment practice for a person or other entity to …retaliate against any individual for engaging in protected conduct.” Since the initial OSC charge was protected conduct and thereafter Kindred filed a retaliatory counterclaim in state court, Breda met the statutory requirements.
    OCAHO explained Kindred’s conduct has a “chilling effect” on Breda as well as “protected charging parties or witnesses who may become aware of Kindred’s counterclaim and be deterred” from having contact with the OSC or other agencies.
    To remedy its unlawful conduct, Kindred was barred from relief under its counterclaim, ordered to post a notice advising employees of their rights (similar to a notice under the National Labor Relations Act due to an unfair labor practice) and remove negative information from Breda’s personnel file.
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