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I-9 E-Verify Immigration Compliance

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  1. OCAHO Decides Who is Protected from Document Abuse

    By: Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    The Office of Chief Administrative Hearing Officer (OCAHO) issued an interesting decision involving “document abuse” which was recently renamed “unfair documentary practices” in the new regulations. U.S. v. Mar-Jac Poultry, Inc., 12 OCAHO no. 1298 (March 2017). It was a split decision with the Administrative Law Judge (ALJ) for OCAHO finding Mar-Jac Poultry committed many document abuse violations while other allegations were not document abuse.

    The case started with a charge filed by Edwin Morales, a TPS recipient, with the Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) alleging document abuse. Thereafter, OSC informed Mar-Jac that it was expanding its investigation to include “a possible pattern or practice of document abuse against non-U.S. citizens.”

    Based on its investigation, the OSC filed a complaint with OCAHO alleging in Count I – Mar-Jac committed document abuse against Morales and “other similarly situated persons” and Count II – Mar-Jac engaged in a “pattern or practice of discrimination in the hiring and Employment Eligibility Verification Process.”

    In its Motion for Summary Judgment, Mar-Jac argued the statute only prohibits document abuse as it relates to protected individuals - U.S. citizens (USCs), recent lawful permanent residents (LPRs), refugees and asylees. Since Morales was a TPS recipient with an Employment Authorization card (EAD), Mar-Jac argued he was not protected regarding the document abuse allegations. The ALJ determined that “claims of document abuse with an intent or purpose of discriminating against an individual based on citizenship status is limited to claims against statutorily-defined protected individuals as defined in 8 U.S.C. § 1324b(a)(6).” Since Morales was on TPS, the ALJ agreed with Mar-Jac’s defense that Morales was not a protected individual.

    Concerning Count II – whether Mar-Jac engaged in a pattern or practice of discrimination, Mar-Jac conceded its HR employees required potential applicants to present a photo ID and a Social Security card in order to obtain an employment application. Without such, Mar-Jac did not provide them with an application.

    Also, if a person checked a box on Section 1 of the I-9 form as a LPR or authorized to work and presented Lists B and C documents, such as a driver’s license and Social Security card, respectively, the Mar-Jac HR employee would request the LPR card or EAD. Mar-Jac’s witnesses stated this request was made to make sure the card was valid and they believed E-Verify required non-USCs to present their LPR card or EAD. The witnesses acknowledged they were mistaken in their beliefs. Mar-Jac conceded USCs were not requested to present a particular document.

    Mar-Jac argued it had a legitimate, non-discriminatory reason, to verify the correct box was marked in Section 1, when its HR employees asked non-USCs to see their List A document – LPR card or EAD. Mar-Jac asserted it followed this practice in order to have Sections 1 and 2 accurately completed and to avoid non-compliance with the completion of the I-9 form, which could cause civil and criminal liability. Mar-Jac also argued it required non-USCs to present a List A document because of a mistaken belief that E-Verify required it; thus, it had no discriminatory intent. Furthermore, Mar-Jac asserted requests related to E-Verify are not covered by 8 U.S.C. § 1324b; thus, no violations should be found.

    To establish a case of document abuse, the decision stated a complainant must show (1) “that, in connection with the employment verification process required by 8 U.S.C. § 1324a(b), an employer has requested from the employee more or different documents than those required or has rejected otherwise acceptable valid documents and (2) that either of these actions was undertaken for the purpose or with the intent of discriminating against the employee on account of the employee’s national origin or citizenship status.”

    One of the issues in the case was the requisite intent required to prove the violations. The OSC asserted U.S. v. Life Generations, a 2014 OCAHO decision, stated an intent to discriminate means that a person “would have acted differently but for the protected characteristic.” Mar-Jac argued it had no intent to discriminate because a significant portion of its workforce were non-USCs. Furthermore, their actions were merely designed to “assist the applicant in satisfying the requirements of the Form I-9.” The ALJ stated discriminatory intent does not require “malice, ill will, or a malevolent nature.” Thus, Mar-Jac’s arguments were without merit.

    The ALJ concluded the testimony of Mar-Jac’s HR employees established direct evidence of discriminatory intent – the requests to see a DHS-issued document, LPR card or EAD, was motivated by the individual’s LPR or work-authorized status. Thus, the ALJ found the company “engaged in prohibited documentary practices by virtue of both specifying the kind of document that a new hire had to present, and requesting an additional document when a new hire sufficiently presented Lists B and C documents. Moreover, Mar-Jac’s documentary practices were carried out for the purposes of satisfying employment verification requirements of 8 U.S.C. § 1324a(b).”

    As for Mar-Jac’s remaining defense that it completed Section 1 as the preparer/translator and thus it needed to verify the information listed to avoid civil and criminal liability, the ALJ stated, “Although the preparer/translator attestation in Section 1 requires an attestation that the information contained therein is true and correct to the best of the preparer/translator’s knowledge, that standard does not require absolute metaphysical certainty – or even actual knowledge – regarding the information from the preparer/translator and in no way requires an employer to ask to see a document to verify the information.”

    Therefore, the OCAHO ALJ found Mar-Jac committed the violations alleged in Count II. A determination on the civil penalties and back pay were left for a later time. Furthermore, Mar-Jac has the right to appeal the ALJ’s decision to the Chief Judge of OCAHO.

    This decision shows employees can be mistaken on the proper manner to complete the I-9 form. Therefore, it is crucial that employers obtain regular training from immigration counsel on immigration compliance issues.
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