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I-9 E-Verify Immigration Compliance

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  1. Fruit and Vegetable Processor Agrees to Pay $225,000 to Settle Discrimination Lawsuit

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    Washington Potato Company and Pasco Processing, LLC and the Justice Department’s Immigrant and Employee Rights Section (IER) of the Civil Rights Division, have reached a settlement agreement, whereby the companies agreed to pay over $225,000 to resolve a discrimination lawsuit filed by IER in November 2016. The complaint alleged Washington Potato directed and controlled Pasco Processing’s hiring practices, including the alleged discriminatory documentary practices, which violated the antidiscrimination provision of the Immigration and Nationality Act (INA).

    According to the November 2016 complaint, filed with the Office of the Chief Administrative Hearing Officer (OCAHO), from at least November 2013 until at least October 2016, Washington Potato and Pasco Processing routinely requested lawful permanent residents (LPRs) hired at Pasco Processing produce a specific document – a Permanent Resident Card (also referred to as a Green Card) – to prove their work authorization, while not requesting a specific document from U.S. citizens (USCs). From November 2013 until October 2016, the complaint alleged the companies hired over 2,000 USCs and approximately 800 LPRs. Of the LPRs hired, 99.5% produced a List A document – their green card - to establish their work authorization while only 2% of the USCs hired produced a List A document, such as a U.S. passport or U.S. passport card.

    Prior to the settlement, the companies asserted the high rate of List A documents for LPRs was because these employees did not possess List B or C documents. However, the government alleged many LPR employees presented List B and C documents but the companies requested non-U.S. citizen employees provide a specific document, a green card, for completion of the I-9 Form while it allowed USCs the flexibility to present a variety of documents.

    Under the settlement agreement, Washington Potato Company and Pasco Processing are required to pay civil penalties of $225,750, revise policies to eliminate any discrimination in the I-9 form and E-Verify procedures, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements for two and one-half years.

    This is another example of the hefty civil penalties imposed by the IER, formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). In this case, it appears the companies decided not to litigate the complaint even though prior negotiations before the issuance of a complaint had been unsuccessful. Although the IER is a much smaller agency than Immigration and Customs Enforcement (ICE), often settlement of their cases involves substantial civil penalties and/or back pay. Thus, it is important that companies understand the antidiscrimination provision of the INA in order that they not face this liability. I recommend regular training on the antidiscrimination provision of the INA by immigration counsel.
  2. OSC Settles Immigration-Related Discrimination Claim Against J.E.T. Holding

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (just renamed the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice) reached a settlement to resolve claims that J.E.T. Holding Co. Inc. discriminated against U.S. citizens, lawful permanent residents, and certain work-authorized immigrants in violation of the Immigration and Nationality Act (INA). J.E.T. is a company based in Saipan, Commonwealth of the Northern Mariana Islands (CNMI), where it operates a restaurant, bowling alley and amusement center.

    The investigation found evidence that for approximately the first five months of 2016, J.E.T. engaged in a pattern or practice of refusing to hire U.S. citizens, lawful permanent residents, and other work-authorized individuals for several dishwasher positions. OSC concluded that J.E.T. failed to consider qualified U.S. citizen applicants and others based on their citizenship or immigration status because of a preference for hiring non-immigrant foreign workers with CW-1 visas. The CW-1 visa grants temporary work authorization to its beneficiaries and is only available in the CNMI.

    Under the terms of the settlement, J.E.T. will pay a civil penalty of $12,000, establish a backpay fund of $40,000 to compensate qualified claimants for any lost wages through a claims process, train its workers on the anti-discrimination provision of the INA, and be subject to department monitoring.
  3. OSC Settles with Staffing Company Who Required U.S. Birth Certificate

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached a settlement agreement with Cumberland Staffing Inc., doing business as AtWork Cumberland Staffing (ACS), a temporary staffing agency located in Cookeville, Tennessee, to resolve an allegation that ACS engaged in citizenship discrimination by requiring a U.S. birth certificate in order to be considered for employment. This requirement discriminated against work-authorized immigrants and naturalized U.S. citizens in violation of the Immigration and Nationality Act (INA).

    The OSC initiated its investigation after a Tennessee resident notified it of an ACS job posting that included a U.S. birth certificate requirement. The investigation found that between December 2015 and February 2016, ACS created and published a job posting stating that applicants for machine operator positions at a client company must present a U.S. birth certificate. The discriminatory posting was published on several job search engine websites during this time period.

    In the absence of a legal basis to do so, such as a law, regulation or government contract that requires U.S. citizenship restrictions, employers, recruiters and referrers for a fee may not limit job opportunities or otherwise impose barriers to obtaining employment based on an individual’s citizenship, immigration status or national origin. By requiring a U.S. birth certificate – a document that only non-naturalized U.S. citizens possess – to be considered for an employment opportunity, ACS’s job posting created a discriminatory barrier for work-authorized individuals, such as naturalized U.S. citizens, U.S. nationals, lawful permanent residents, asylees and refugees.

    Under the settlement agreement, ACS will pay a civil penalty of $1,200, remove all specific document requirements from its job postings except where required by law, train staff on proper employment verification and reverification procedures, including attendance at a OSC webinar on anti-discrimination, and ensure that trained staff or legal counsel review future job advertisements.
    The takeaway from this settlement is do not require certain documentation, such as a U.S. birth certificate, that will discriminate against other work-authorized indiduals
  4. OSC gets Creative in Settlement with MDCPS

    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 Miami-Dade County Public Schools (MDCPS) resolving claims that MDCPS discriminated against employees because of their citizenship status in violation of the Immigration and Nationality Act (INA).

    The investigation found that MDCPS required non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documents to prove their employment eligibility. The INA’s anti-discrimination provision prohibits employers from making specific documentary demands based on citizenship or national origin when verifying an employee’s authorization to work.

    Under the settlement agreement, MDCPS will pay a $90,000 civil penalty to the United States and will establish a $125,000 back pay fund to compensate individuals who lost wages because of the MDCPS’s practices. In order to locate back pay claimants, MDCPS must notify, through e-mail and mail, all individuals who were offered employment or who received a “conditional offer” but were not hired. The settlement also requires MDCPS to revise its employment practices in regards to non-discrimination within 90 days and submit them to OSC for approval, undergo compliance monitoring for three years, and have OSC train its human resources employees on the anti-discrimination provision of the INA.

    In a very unique remedy, OSC will provide one-hour training sessions regarding workers’ rights to students at up to 10 high schools in MDCPS as well as five adult English for Speakers of Other Languages.

    As a graduate of MDCPS (from many years ago), it is disappointing to see the school district’s discrimination. Additionally, this settlement agreement shows the creativity that OSC is using in crafting settlements. I strongly advise employers to get proper training from an immigration compliance attorney as too many employers are demanding specific documents from non-citizens but not from U.S. citizens. Without this training, employers may be facing lots of liability in the same manner as MDCPS.
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