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I-9 E-Verify Immigration Compliance

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  1. Prior Settlement Agreement Destroys Employee's OSC Claim

    By Bruce Buchanan, Sebelist Buchanan Law

    Click image for larger version. 

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    Despite reaching a Settlement Agreement with Discover Financial Services, wherein the Complainant, was paid over $73,000, Ashntosh Sharma filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) alleging he was discriminated against because he is a lawful permanent resident (LPR). OSC declined to proceed with a complaint. Sharma then submitted his claim to the Office of Chief Administrative Hearing Officer (OCAHO), which dismissed his complaint because he had previously reached a Settlement Agreement, Waiver, and Release of Claims. See Sharma v. Discover Financial Services, LLC, 12 OCAHO no. 1292 (Dec. 2016)

    Sharma was employed by Discover for a period of time during which he alleged Discover favored H-1B visa holders over U.S. citizens or LPRs in training opportunities and promotions. Sharma applied for five job openings and two training opportunities but did not receive any of them. In October 2014 and January 2015, Sharma filed charges with the Equal Employment Opportunity Commission (EEOC) alleging discrimination and retaliation. After filing the charges, Sharma hired an attorney to negotiate a settlement. On May 29, 2015, Sharma and Discover reached an agreement where Discover paid Sharma over $73,000 and Sharma agreed to withdraw his EEOC charge and waive and release Discover from any other claims or liability.

    Before reaching this settlement, Sharma filed a charge with the OSC on March 15, 2015. After the settlement, Sharma filed a Complaint with OCAHO on April 27, 2016 alleging citizenship status discrimination and retaliation.

    Discover responded that Sharma’s claims overlapped with his EEOC complaint and the claims before OCAHO were released and waived by Sharma through the May 29 settlement and release. The Settlement Agreement, Waiver, and Release of Claims states the parties are settling “any and all claims that have been or could have been asserted by Sharma related to his employment with Discover and end any and all employment relationships between them.” Although the Settlement Agreement, Waiver and Release does not specifically list claims under 8 U.S.C. § 1324b (citizenship status discrimination, etc.), OCAHO quoted caselaw finding a party need not enumerate the specific claims an employee is waiving in a general release. Furthermore, Sharma was clearly aware of any claims under 8 U.S.C. § 1324b when he signed the Settlement Agreement as the alleged acts began as early as June 2014 and were set forth in his March 2015 OSC charge. Thus, OCAHO found the release covered any claims brought under 8 U.S.C. § 1324b. OCAHO also found the Settlement Agreement, Waiver and Release was knowing and voluntary given Sharma’s education and that he hired an attorney to negotiate the settlement. Furthermore, Sharma did not even challenge the knowing and voluntary nature of the release.

    For these reasons, OCAHO dismissed Sharma’s complaint. The question in my mind is why would Sharma pursue a claim before OCAHO when he clearly had released Discover for any further liability. It should be noted Sharma did not have legal counsel before OCAHO, presumably because counsel who negotiated the Settlement Agreement, Waiver and Release informed him that he lacked the basis of any further claims or liability against Discover.
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