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By Bruce Buchanan
Le Grande Tetons, LLC, a company that owns and operates Twin Peaks, a sports bar/restaurant with two locations in Wichita, Kansas, pleaded guilty in federal court to hiring undocumented workers.
In September 2013, ICE conducted a Form I-9 inspection at the two Twin Peaks Wichita locations and identified more than 20 unauthorized workers. Afterwards, a Twin Peaks manager agreed to immediately fire the employees, but, in fact, rehired many of these employees. Thereafter, federal search warrants were executed at both Twin Peaks locations in July 2014.
As a result of a plea agreement in the case, the court imposed a fine of $50,000 on the company. According to the plea agreement, the U.S. Attorney’s Office agreed not to pursue any additional charges against the owners, current employees or former employees of Le Grande Tetons, with the exception of two former management employees who remain under federal investigation.
This investigation is an example of ICE’s new policy to emphasize criminal investigations of those employees who flaunt the law by not rehiring or discharging undocumented workers.
By: Bruce Buchanan, Siskind Susser
In United States v. 7-Eleven, 11 OCAHO no. 1258 (September 2015), the Office of Chief Administrative Hearing Officer (OCAHO) found a 7-Eleven franchisee had committed numerous serious I-9 violations but reduced the proposed penalties by about 55%.
After service of a Notice of Inspection (NOI), Immigrations and Customs Enforcement (ICE) determined 7-Eleven had a 100% error rate on its I-9 forms. Specifically, ICE alleged 7-Eleven failed to timely prepare or present 27 I-9 forms and failed to ensure proper completion of eight I-9 forms. ICE sought a penalty of $34,408 based on a baseline penalty of $935 plus 5% enhancement for lack of good faith – backdating many I-9 forms. 7-Eleven, who was not represented by counsel, raised 19 affirmative defenses, almost all of which had no basis under the law.
The 27 I-9 forms that were not timely prepared or presented varied in their substantial defects: two employees did not have an I-9 form at all; five I-9 forms were backdated using the 2013 I-9 form for employees hired in 2012; 11 Form I-9s were not timely completed as they used the 2013 I-9 form and listed hire dates between 2010 and 2012; and nine other I-9 forms had numerous substantive errors, such as missing page 2, unsigned by employer and/or employee, and missing other pertinent data.
One of 7-Eleven’s principal defenses was that the employees hired were authorized for employment because the franchisee was required by 7-Eleven to submit information and data concerning new hires into a centralized information system, which determined employee’s work eligibility. This defense was found to be without merit. As OCAHO stated, “no other scheme or system an employer wishes to use to circumvent or replace the form I-9 completion and retention requirements…”
One issue which appears frequently in OCAHO litigation is whether the backdating of I-9 forms is evidence of bad faith. Although at first blush it might appear so, OCAHO has repeatedly stated that absent an indication that ICE instructed the employer not to backdate the I-9 forms, the government fails to prove bad faith and the 5% enhancement. In this case, ICE failed to offer any such proof; thus, the 5% enhancement failed.
Concerning the penalties, even though most of the violations were considered serious, 7-Eleven was substantially aided by the franchisee being a small employer. As OCAHO has repeatedly found, an employer’s small business status under the Small Business Regulatory Enforcement Fairness Act provides for leniency in penalties. Thus, OCAHO reduced the penalties from $34,408 to $15,450.
By Bruce Buchanan, Siskind Susser
An Indian Kansas couple pleaded guilty in federal court to unlawfully employing undocumented workers. The husband pleaded guilty to engaging in a pattern or practice of employing illegal workers and failure to collect federal income and Social Security taxes. His wife pleaded guilty to an unlicensed money remitting business charge. As part of their plea agreements, the couple agreed to forfeit more than $700,000 in cash, money from bank accounts, and gold seized by the government in this case. Those assets represent proceeds of their unlawful activities.
This case arose when inspectors from the Kansas Department of Revenue’s Alcohol Beverage Control division observed employees at the Route 56 Express gas station and convenience store in McPherson selling tobacco products to minors. The investigators determined that several employees at Route 56 Express were not lawfully in the United States, nor were they authorized to be employed. Local and federal investigators then assisted, which led to the return of the federal indictments in June.
These charges carry maximum penalties of five years in prison and a $250,000 fine. The couple’s sentencings are set for November 25.
By Bruce Buchanan, Siskind Susser, PC
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached a settlement with Louisiana Crane & Construction LLC (Louisiana Crane), a company headquartered in Eunice, Louisiana that provides services to oilfields. The settlement resolves a lawsuit filed on August 29, 2014, by OSC.
The lawsuit alleged from at least January 1, 2013, until at least September 1, 2013, Louisiana Crane required workers who are not U.S. citizens to produce documents issued by the Department of Homeland Security as a condition of employment, but it did not make similar demands of U.S. citizens. The anti-discrimination provision of the Immigration and Nationality Act (INA) prohibits employers from placing additional documentary burdens on workers during the employment eligibility verification process based on the worker’s citizenship status.
Under the settlement agreement, Louisiana Crane will pay $165,000 in civil penalties to the United States; establish a $50,000 back pay fund to compensate workers who lost wages because of the company’s practices, revise any unlawful employment policies, have its HR Personnel trained on the INA’s anti-discrimination provision, and undergo monitoring for two years, whereby Louisiana Crane must provide new I-9 forms and related documents to OSC. Concerning the back pay fund, individuals, who were authorized to work in the United States but were denied a job at Louisiana Crane, whose hire date was delayed by Louisiana Crane or were fired by Louisiana Crane between 2011 and 2015 because they could not show the documents the company requested to prove their work authorization, may file a claim within 60 days of receiving notification of a possible back pay claim.
As this settlement demonstrates, OSC continues to demand hundreds of thousands of dollars to resolve immigration discrimination claims.
By Bruce Buchanan, Siskind Susser PC
Immigration and Customs Enforcement (ICE) and the Department of Labor (DOL) raided the tortilla factory, La Espiga de Oro, in Houston, Texas in August 2015. They served a criminal search warrant at the business and detained approximately 10 workers from the factory.
Prior Raids Stopped in 2008
2008 was the last year of any significant raids by ICE on employees. In that year, ICE raided a meatpacking plant in Pottsville, Iowa, Howard Industries, Inc. in Laurel, Mississippi, and Action Rags USA, a second-hand clothing company, in Houston, Texas. That same year, ICE announced a shift away from sweeping up undocumented workers in high-profile work site enforcement raids. Instead, ICE began a Culture of Compliance, which focused on targeting employers for their hiring practices and proper completion of the I-9 forms. This has forced thousands of U.S. businesses to open up their books to ICE agents and led to the collection of millions of dollars in penalties.
Some Detained Workers Received Employment Authorization
Greg Palmore, a spokesman for ICE, said the La Espiga de Oro raid is part of an ongoing investigation but declined to provide any more details. He said that seven of the 10 detained workers were granted employment authorization, allowing them to legally work here for up to one year because they are “material witnesses.” Palmore stated the immigrants “have to be able to work and survive while we retain them as witnesses.” Three other detainees were not granted work authorization though ICE declined to say why.
Has ICE changed their methods or was this raid just an aberration? Time will tell. I will keep you alerted on this matter.