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I-9 E-Verify Immigration Compliance

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  1. BALCA Reverses Decision of Certifying Officer

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    BALCA reversed a Certifying Officer’s (CO) denial of labor certification after it was persuaded that an employer’s failure to provide an unaltered copy of requested Form 9089 in response to the audit request was due to an electronic processing system and printing error that cut off language in the form. (Spirent Communications, 2013-PER-02757).

    Spirent Communications, Inc. filed Form 9089 sponsoring a foreign national for permanent employment. The application was later chosen for audit requiring the employer to provide a copy of the submitted Form 9089. After noticing a sentence at the end of both paragraph H. 11 and H. 14 of the form were unintendedly cut off by the electronic processing system, Spirent provided a corrected form to include each entire sentence. The corrected language matched what was included in paragraph K-9 of Form 9089 and the Prevailing Wage Determination.

    The CO denied the PERM application citing that the corrected cut off sentence violated the requirement of an unaltered copy of Form 9089. Spirent asked for reconsideration stating it had no intent to deceive and the dangling sentence had no material effect on recruitment. Spirent additionally submitted an affidavit explaining the discrepancy between printed and electronic documents. The CO upon reconsideration upheld its denial - stating Spirent failed to submit an unaltered copy of the form.

    On appeal, BALCA found that correcting an obvious error was not a substantial failure to respond. Spirent’s notarized affidavit and attorney both explaining the mistake as well as the language in question being represented in full in paragraph K-9 and the Prevailing Wage Determination buttressed its appeal. Thus, BALCA remanded the matter for certification.

    Although the company ultimately prevailed, this case illustrates the importance of checking system printouts before submission and maintaining an audit file.
  2. Professor Flunks the Test

    By Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Chief Administrative Hearing Officer (OCAHO) held, in Chellouf v. Inter American University of Puerto Rico, 12 OCAHO No. 1269 (2016) that the university did not retaliate against Linda Chellouf by discharging her from the faculty.

    Chellouf’s Years as an Instructor, Assistant Professor and Associate Professor

    Chellouf, a French national, holds a Doctor of Musical Arts from Eastman School of Music. Chellouf became employment on a temporary appointment as instructor in the Department of Fine Arts for the academic year 2006-2007. She was eligible for employment under an approved H-B visa. One year later, Chellouf received a temporary appointment as an assistant professor. This was renewed during the 2008-2009 academic year. In July 2009, she was promoted to a probationary associate professor and received a series of one year appointments for the academic years of 2009-2010 through 2012-2013.

    Labor Certification Process

    In 2013, the university began a process of labor certification to retain Chellouf as a permanent resident worker. The university started the required advertising process at that time, including two consecutive Sunday advertisements ion the newspaper, El Nuevo Dia. On May 14, 2013, Chellouf sent an email to the university’s attorney expressing her belief that the university was not properly advertising because it did not place an ad in a national professional journal.

    On August 1, 2013, the university provided her with another one-year appointment as a probationary associate professor for the 2013-2014 academic year. Chellouf declined to sign it because she had applied for a permanent position and promotion. On August 12, 2013, the university notified her that her evaluation of the sixth year of her tenure track had been approved for the academic year of 2013-2014.

    Chellouf’s Termination

    Despite not signing the August 1, 2013 contract, Chellouf continued her teaching duties. However, on October 16, 2013, she was notified that the university considered her to have “voluntarily resigned” because she had not signed the August 1 contract. The contract stated it was invalid on its terms after 15 days unsigned. Thus, Chellouf ceased her professor duties and her salary was not paid thereafter. A formal termination letter was signed by the University Chancellor on November 4, 2013, reiterating her employment had been terminated. The university paid Chellouf back wages from October 16 to November 4, 2013 and offered to pay her transportation costs back to France.

    OSC Charge and Complaint

    On March 10, 2014, Chellouf filed a charge with the Office of Special Counselfor Immigration-related Unfair Employment Practices (OSC) alleging the university violated Department of Labor regulations and discriminated against individuals protected by §1324b by advertising the position in a local paper rather than a national professional journal. OSC gave Chellouf a right-to-sue and she filed her complaint with OCAHO on October 7, 2014 alleging she was retaliated against for opposing the university’s recruitment practices for foreign faculty.

    Parties’ Arguments and OCAHO’s Decision

    The university argued Chellouf did not even make out a prima facie case of retaliation because she did not engage in protected activity. Specifically, her May 14, 2013 email did not allege discrimination, just the accuracy of the labor certification process. Thus, the university argued there is no factual basis of a causal relationship between the email and her termination. Even if Chellouf somehow met her standard, the university asserted the reason for her discharge was Chellouf’s failure to sign the August 1, 2013 employment contract- a legitimate nondiscriminatory reason.

    Chellouf asserted she did not abandon her employment and she was terminated for no legitimate reason. But Chellouf did not give a plausible reason for her failure to sign the contract. Rather, Chellouf stated she wanted a permanent tenure-track position but ignored the fact she was not eligible for such at that time. Finally, she returned to her argument about the university’s advertising practices.

    OCAHO agreed with the university’s positions – Chellouf had not engaged in protected activity and even if she had, the university offered a legitimate non-discriminatory reason for her discharge. OCAHO referred to Chellouf’s argument as “wishful thinking” but laments there were “no winners in this case” because the university lost a “valued faculty member.”

    Takeaways

    In order for an employee to be retaliated against, the employee must have engaged in protected activity. A general complaint is insufficient.
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