Advertise on ILW
Connect to us
Make us Homepage
Chinese Immig. Daily
The leadingimmigration lawpublisher - over50000 pages offree
Copyright© 1995-ILW.COM,AmericanImmigration LLC.
By Bruce Buchanan, Sebelist Buchanan Law
Cawoods Produce, Inc. was successful in reducing by more than 50% the proposed penalty of $36,465 by Immigration and Custom Enforcement (ICE) before the Office of Chief Administrative Hearing Officer (OCAHO).
Cawoods was served with a Notice of Inspection (NOI) requesting the employer’s I-9, employee roster, and federal quarterly tax statements. After producing these documents, ICE issued a Notice of Suspect Documents, two Notices of Discrepancies, and a Notice of Technical and Procedural Failures. Thereafter, ICE issued a three-court complaint against Cawoods – Count I – failed to properly correct technical failures for two employees; Count II – failed to prepare and/or present I-9 forms for nine employees; and Count III – failed to properly complete 28 Form I-9’s.
ICE set the baseline penalty at $935 for the 39 violations based on 52 employees or 75%. Interestingly, it did not mitigate or aggravate the penalties based upon the five factors, finding them all to be neutral. Cawoods asserted it was a small business and should receive a 5% mitigating factor as well as one for good faith compliance. ICE treated good faith as neutral because it cooperated in the investigation. These assertions should have been discounted as it is well-established case law that good faith compliance after the service of the NOI is meaningless. Overall, ICE sought $36,465 as the penalty.
OCAHO found the two employees’ I-9 forms with technical errors were never listed in the Notice of Technical Failures nor was Cawoods given the opportunity to correct the technical errors. Therefore, Count I was dismissed.
Concerning Count II, OCAHO found that one employee was not listed on the quarterly tax report; thus, there was no showing that he was employed during the relevant period. However, the other eight employees were employed and Cawood’s failure to prepare I-9 forms on them was a serious violation.
As for Count III, OCAHO found ICE established liability for most, but not all, of the alleged violations. ICE failed to show nine of the 28 employees listed were employees during the relevant time period through tax records or any other records. OCAHO agreed the other 17 employee’s I-9 forms were improperly completed in Sections 1, 2, or 3.
Concerning the five factors, OCAHO found Cawoods to have committed serious violations, which called for a 5% aggravating factor while it was due a 5% mitigating factor of being a small business.
Based on the totality of the circumstances, OCAHO found $600 per the eight violations in Count II and one violation in Count III ($5400); $575 for the nine serious violations in Court II ($5175), and $500 per violation for the improper completion of eight I-9 forms ($400). Overall, it assessed a penalty of $14, 575.
As you can see, litigation in this case was a worthwhile endeavor as it reduced the penalties by about 75%. ICE’s failure to provide sufficient proof on many of the allegations proved to be their downfall.
By Bruce Buchanan, Siskind Susser
The California Supreme Court recently found, in Salas v. Sierra Chemical Co., that an undocumented worker who filed a claim under the California Fair Employment and Housing Act (FEHA) was not barred from receiving damages for lost wages.
The employee alleged that Sierra failed to reasonably accommodate his physical disability and refused to rehire him, in retaliation for his filing of a worker’s compensation claim. During discovery, Sierra learned the employee in question was undocumented and had used someone else’s Social Security number for employment.
Sierra argued the employee was not entitled to back pay or damages because of his undocumented status, citing the U.S. Supreme Court’s decision in Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). In Hoffman, the court held the NLRB could not “award back pay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by criminal fraud.”
The employee argued that an amendment to California’s FEHA entitled him to all remedies available under state law, except reinstatement, regardless of his immigration status. Interestingly, the California FEHA amendment was passed in response to the U.S. Supreme Court’s decision in Hoffman.
Does the federal Immigration Reform and Control Act (IRCA) preempt the California FEHA anti-discrimination law?
In this case, the California Supreme Court found that FEHA generally is not preempted by federal law and did not directly conflict with IRCA because compliance with both federal and state law is possible. Although IRCA prohibits unauthorized use of false documents to get a job, it does not prohibit an employer from paying, or an employee from receiving, wages earned during employment wrongfully obtained by document fraud, so long as the employer remains “unaware” of the employee’s unauthorized status.
Stated another way, an employee may be entitled to lost wages for the period of time from unlawful termination until the employer discovers the fraud. In this case, the Court held that the employee was not entitled to any award for loss of employment during the post-discovery period because Sierra learned of his undocumented status during discovery and IRCA prohibits “knowingly” employing an unauthorized worker.
The California FEHA amendment did not frustrate the purpose of the IRCA statute, insofar as it made available to the employee the remedy of pre-discovery period lost wages for unlawful termination. By not allowing unauthorized workers to obtain state remedies for unlawful termination, including pre-discovery period lost wages, the California Supreme Court reasoned that it would effectively immunize employers who violate California state law by discriminating against their workers on grounds such as disability or race, retaliate against workers who seek compensation for workplace injuries, or who fail to pay the wages required under state law.
This case shows that California employers cannot hide behind an employee’s undocumented status in attempting to deny back pay after violating a state employment law. It also reinforces the importance to employers of proper completion of I-9 Forms and proper use of DHS E-Verify which can help employers identify document abuse and/or fraudulent social security numbers used by undocumented workers.
A copy of the court opinion is available here.
An Ohio grand jury returned a 23-count indictment charging six people for their roles in a conspiracy to hire undocumented workers at a chain of restaurants in Ohio, called “Mariachi Locos” and “Mariachi Cocos” and pay them less than minimum wage. Prosecutors are also seeking for defendants to forfeit more than $16 million generated by the restaurants.
According to the indictment, the defendants engaged in the practice of hiring undocumented workers who were illegally present in the United States and conspired to shield these workers from detection by paying them in cash, excluding them from payrolls, leasing housing for the workers, and aiding the workers in obtaining fraudulent work documentation.
Prosecutors allege the defendants’ employment practices enabled them to enrich themselves because they paid the undocumented workers less than minimum wage, and did not pay the workers for overtime hours worked.
The charges include harboring undocumented workers, conspiracy to harbor undocumented workers, aiding and abetting the harboring of undocumented workers, mail fraud, and conspiracy to commit mail fraud. Two defendants are also charged with making false statements to federal law enforcement officers.
This indictment is just one more example of the high cost of committing employment-related immigration violations, especially when it involves harboring undocumented workers.
In Ashland Sales & Service Co. (Nov. 2013), the Government Accountability Office (GAO) dismissed a protest by Ashland Sales & Service Co. (Ashland), of Olive Hill, Kentucky, alleging that a contract for the Defense Logistics Agency was improperly awarded to Creighton AB, Inc. (Creighton), of Reidsville, Kentucky, because Creighton was not enrolled in the E-Verify system at the time of award.
The issue involved the FAR clause - 52.222-54, Employment Eligibility Verification, which provides a contractor not enrolled in E-Verify at contract award “shall [enroll] within 30 calendar days of contract award.” According to the decision, Creighton was not enrolled in E-Verify at the time of award, but it enrolled the next day. The GAO found the requirement in the FAR clause allowing enrollment 30 days following award to be a matter of contract administration “having no effect upon the validity of an award.” Thus, the protest involved an issue outside of the GAO’s bid protest jurisdiction, under which it considers “challenges to the award or proposed award of contracts.”
Furthermore, the GAO did not find the awardee’s previous noncompliance with the requirement in the FAR clause related to E-Verify, to be disqualifying. In its protest, Ashland stated the same contracting activity involved in the protest had awarded contracts to Creighton and allowed Creighton to perform work without enrolling in E-Verify as required by the FAR clause, which also was included in these earlier contracts. According to Ashland, this prior noncompliance rendered Creighton’s proposal technically unacceptable and ineligible for award. The GAO stated it did not condone Creighton’s prior failure to enroll in E-Verify, but this did not alter its view that Creighton’s proposal was acceptable or that compliance with the E-Verify requirement was a matter of contract administration that it would not review.
This decision is just another instance of E-Verify becoming an issue in other areas of the law, besides immigration.[FONT=Times New Roman]
Updated 12-10-2013 at 11:54 AM by BBuchanan
The Justice Department, through the Office of Special Counsel (OSC) has reached an agreement with the Arapahoe County, Colorado Office of the Sheriff resolving allegations that the Sheriff’s Office violated the anti-discrimination provision of the Immigration and Nationality Act (INA). The investigation found reasonable cause to believe the Office of the Sheriff improperly restricted law enforcement positions to U.S. citizens (USCs), notwithstanding the fact that no law, regulation, executive order or government contract authorized it to restrict employment in this manner. A former employee, who filed a lawsuit, was a USC and had documentation that showed her work authorization, but not her citizenship. The INA’s anti-discrimination provision permits employers to limit jobs to U.S. citizens only where the employer is required to do so by law, regulation, executive order, or government contract. Under the settlement agreement, the Office of the Sheriff’s employment eligibility verification practices will be subject to monitoring by the Justice Department and reporting requirements for a period of three years, the Sheriff’s Office agreed to pay $500 in civil penalties to the United States, and inform other affected non-U.S. citizen applicants that they could re-apply for available law enforcement positions. The Office of the Sheriff had already addressed the identified victim’s back pay claims through an earlier agreement based on her private lawsuit. Let this case be a lesson to employers – if there is no law, regulation, executive order, or government contract which requires the employee be a USC, do not restrict the position to only USCs.