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I-9 E-Verify Immigration Compliance

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  1. DOJ’s Lawsuit for Discrimination Based on Citizenship Status is Unusual

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC

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    The Justice Department, through the Immigrant and Employee Rights Section (IER), filed a lawsuit against Louisiana-based companies Technical Marine Maintenance Texas LLC, which provides contract shipyard labor, and Gulf Coast Workforce LLC, a related company, alleging that they violated the Immigration and Nationality Act (INA) by engaging in a pattern or practice of discrimination against U.S. citizens and non-U.S. citizens during the I-9 and E-Verify process.

    According to the Complaint, from at least January 2014 until at least July 2017, Technical Marine asked U.S. citizens to produce List B and C documents, such as a state driver’s license and Social Security cards, respectively. The statistics showed during this period, Technical Marine obtained List B and C documents from 99.56% of U.S. citizens. On the other hand, Technical Marine asked non-U.S. citizens to produce a List A document, such as a permanent resident card (green card) or employment authorization document. The statistics showed during this period, Technical Marine obtained a List A document from 99.29% of non-U.S. citizens.

    This is an unusual case because the Complaint alleges Technical Marine discriminated against both U.S. citizens and non-U.S. citizens by their requests for certain documentation. In most cases brought by DOJ, the discrimination occurs through the request and receipt of certain document(s) by non-U.S. citizens while U.S. citizens are free to present any documentation from the Lists of Acceptable Documents. Because Technical Marine asked for specific and different documents from U.S. citizens and non-U.S. citizens, then both actions are alleged as unlawful. Under the INA, all workers, regardless of their citizenship status, must be allowed to choose from among the valid documentation that proves their employment eligibility.

    This Complaint is a reminder to employers – do not request specific documentation from employees, regardless of whether they are U.S. citizens or non-U.S. citizens. If you do, you may be investigated by the IER of the DOJ. Such investigations are costly and subject employers to civil penalties and back pay if they are found to have committed this type of discrimination or if employers reach a settlement with the IER.
  2. OSC Settles Immigration-Related Discrimination Claim Against Utah Company

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, reached an agreement resolving claims that 1st Class Staffing LLC, a staffing company based in Orem, Utah, discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).

    The OSC’s investigation found that 1st Class Staffing’s office in Fontana, California routinely requested that non-U.S. citizens provide specific immigration documents to establish their authorization to work. However, it did not request specific immigration documents to establish their authorization to work from U.S. citizens. Under the INA, all workers, including non-U.S. citizens, must be allowed to choose whichever valid documentation they would like to present from the lists of acceptable documents to prove their work authorization. Failure to allow such because of their citizenship, immigration status or national origin is unlawful.

    Under the terms of the settlement agreement, 1st Class must pay for lost wages to the charging party whose complaint initiated the investigation; pay $17,600 in civil penalties to the United States; ensure all relevant personnel have the current version of the M-274 – I-9 Handbook for Employers, and M-775 – USCIS E-Verify Manual; train its human resources staff on the anti-discrimination provision of the INA by attending an OSC webinar; provide the OSC every 4 months for the next year a list of all individuals hired, including name, hire date and citizenship status, from which the OSC may select up to 150 individuals to review their I-9 forms; and review and revise its policies and procedures to comply with the requirements of the INA’s anti-discrimination provision.
  3. 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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