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By Bruce Buchanan, Sebelist Buchanan Law PLLC
The Office of Special Counsel for Immigrated-Related Unfair Employment Practices (OSC), a division of the Justice Department, reached an agreement with NetJets Services Inc. (NetJets), a business that provides private aviation services based out of Columbus, Ohio. In resolving the allegations that that NetJets violated the anti-discrimination provision of the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants, it agrees to pay a $41,480 civil penalties.
The investigation found that NetJets improperly required newly hired, work-authorized non-U.S. citizens to present specific documents to prove their employment eligibility while not requiring similarly-situated U.S. citizens. The investigation further found that existing employees who were legal permanent residents (green card holders) were subjected to unnecessary post-employment reverification of their employment eligibility because of their immigration status and that employees who had become naturalized U.S. citizens after they were hired were required to present more and different documents than necessary to establish their citizenship status. All of NetJets’ actions were citizenship discrimination, which is prohibited by the INA’s anti-discrimination.
Besides paying the $41,480 civil penalty, the settlement agreement requires NetJets to have its human resources staff trained by OSC on the anti-discrimination provision of the INA and be subject to monitoring by the OSC for a period of two years, including providing written reports to determine compliance upon the request of OSC.
By Bruce E. Buchanan, Siskind Susser PC
The Office of the Chief Administrative Hearing Officer, through an Administrative Law Judge (ALJ), issued a decision in Gonzalez-Hernandez v. Arizona Family Health Partnership, 11 OCAHO no.1254 (July 2015), finding that the employer did not discriminate against the Complainant, Brian Gonzalez-Hernandez, because a DACA recipient is not a protected individual for citizenship status discrimination. Further, there was no document abuse.
Gonzalez-Hernandez, a DACA recipient with an Employment Authorization Document (EAD), applied for a position as a healthcare navigator. The job required extensive travel throughout Arizona. Thus, the job description required a valid Arizona Driver’s license. Arizona Family Health Partnership (AFHP) offered Gonzalez-Hernandez the job and requested him to provide proof of an Arizona driver’s license. Gonzalez-Hernandez stated he only had a California driving permit.
Thereafter, AFHP rescinded their offer of employment due to the lack of an Arizona driver’s license, but stated that once Gonzalez-Hernandez obtained such a driver’s license, he would be eligible for the position. AFHP cited the state law which requires anyone who works in Arizona for at least seven months in a year must obtain an Arizona driver’s license. At this point, Gonzalez-Hernandez notified AFHP that he was a DACA recipient, and under Arizona state law, was unable to obtain an Arizona driver’s license.
After AFHP hired someone else, Gonzalez-Hernandez filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) alleging discrimination and document abuse. Thereafter, the OSC provided a letter to Gonzalez-Hernandez giving him the right to pursue an action before OCAHO. Gonzalez-Hernandez filed such an action.
The ALJ found Gonzalez-Hernandez was not protected by the statute – a protected individual is a citizen or national of the United States, a permanent resident, refugee, asylee, or temporary resident agricultural worker. A DACA recipient does not fit into any of these categories; thus, this allegation was dismissed. The ALJ also dismissed the document abuse allegation for several reasons – Gonzalez-Hernandez was never asked to complete an I-9 form. AFHP’s request for a driver’s license was not to determine work authorization, and the request was for a legitimate, non-discriminatory reason – the job required an Arizona driver’s license.
Citizenship discrimination is limited to only those protected individuals and a DACA recipient is not protected. Furthermore, in order to establish document abuse, an employer must request an employee to complete an I-9 form.
Updated 08-19-2015 at 11:54 AM by BBuchanan
By Bruce Buchanan, Siskind Susser
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached a settlement with The Data Entry Company Inc. (TDEC), a government subcontractor located in Bethesda, Maryland. This case is unique because it involved a claim of discrimination based on dual citizenship.
The OSC’s investigation found that on two occasions TDEC removed a U.S. citizen from its pool of applicants because she was a dual citizen, in violation of the Immigration and Nationality Act (INA). Under the INA’s anti-discrimination provision, employers may not discriminate in hiring on the basis of citizenship status unless required by law, regulation, executive order or government contract.
Under the settlement agreement, TDEC will pay $7,007.75 in back pay to the charging party and a $750 civil penalty to the United States. For the next two years, the company must also send all current human resources personnel and all new human resources personnel to attend a compliance training webinar presented by the OSC.
TDEC further agreed not to remove dual citizen applicants from consideration for jobs that are open to other U.S. Citizens and for which a basic security clearance or higher level security clearance is required on the basis of their dual citizenship. This requirement will not apply if an applicable government contract prohibits employment of a dual U.S. Citizen, or if the company has received written notification from the government directly or indirectly stating that candidates with dual citizenship are not acceptable.
A copy of The Data Entry Company Inc. settlement agreement can be viewed here.
ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .
By Bruce Buchanan, Siskind Susser
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached a settlement with Hilton Worldwide (Hilton) to resolve allegations that Hilton discriminated against a foreign-born worker.
The settlement comes after an investigation into a complaint that was called-in to the OSC Worker Hotline. OSC’s investigation found reasonable cause to believe that Hilton engaged in citizenship status discrimination - “document abuse”, during the employment eligibility verification process in violation of the Immigration and Nationality Act (INA). Specifically, the department found that a Hilton-owned hotel in Naples, Florida, discriminated against an asylee by improperly rejecting his Social Security card when the hotel reverified his employment authorization.
The anti-discrimination provision of the INA prohibits employers from rejecting an employee’s work-authorization documents because of the employee’s citizenship, immigration status or national origin. The INA also prohibits employers from specifying documents that employees must present during the employment eligibility verification process, and employers cannot reject documents that reasonably appear to be genuine and relate to the worker.
Under the settlement agreement, Hilton will pay $550 in civil penalties to the United States; pay $12,600 in back pay to the worker who brought the complaint; revise its employment eligibility verification policies; undergo training on the anti-discrimination provision of the INA, and be subject to monitoring of its employment eligibility verification practices for two years in its owned or managed Florida Hotels.
This settlement demonstrates that employers, large and small, can benefit from incorporating INA anti-discrimination provisions into a company I-9 Compliance policy, and from conducting immigration compliance training.
A copy of the Hilton Worldwide settlement agreement can be viewed here.
ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow this author on social media via Facebook and on Twitter @BuchananVisaLaw .
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, has reached a settlement with U.S. Service Industries (USSI), a janitorial company operating in Florida, Maryland, Virginia and Washington, D.C.
The settlement resolves allegations that USSI required non-U.S. citizens to present more or different types of documents as a condition of employment, while U.S. citizens were allowed to present their choice of documentation. 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 their citizenship status. The INA also prohibits employers from specifying documents that employees must present during the employment eligibility verification process.
Under the settlement agreement, USSI will pay $132,000 in civil penalties to the United States; establish a $50,000 back pay fund to compensate any workers who may have lost wages; revise its employment eligibility verification policies; undergo training on the anti-discrimination provision of the INA for the next three years; and be subject to monitoring of its employment eligibility verification practices for two years.
Acting Assistant Attorney General for the Civil Rights Division, Ms. Vanita Gupta, took this opportunity to remind employers that they “cannot create unlawful discriminatory obstacles for immigrants”, and large employers should “review their employment eligibility verification practices at all of their offices to make sure they are in compliance with the law.”
A copy of the USSI settlement agreement can be viewed here.