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By Bruce Buchanan, Sebelist Buchanan Law
The Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached a settlement agreement with Hartz Mountain Industries Inc., of Secaucus, New Jersey, to resolve allegations that the company discriminated against work-authorized non-U.S. citizen job seekers, in violation of the Immigration and Nationality Act (INA).
The OSC’s investigation found that Hartz discriminated based on citizenship status by publishing a job posting that required applicants for a particular job opening to be U.S. citizens, in violation of the INA. Job postings with citizenship preferences or requirements violate the INA by restricting employment opportunities available to work-authorized non-citizens. While there are exceptions in the INA that allow for specific positions to be subject to citizenship requirements, the position available at Hartz did not meet the criteria.
Under the settlement agreement, Hartz will pay $1,400 in civil penalties to the United States, train its human resources staff on the anti-discrimination provision of the INA, revise its policies on requiring citizenship and other policies, ensure all postings or advertisements are reviewed by a trained individual in employment discrimination or by legal counsel, review its policies and be subject to monitoring by the department for a three-year period.
Although this type of violation is rarely seen, it can be prevented by legal counsel reviewing a company’s job postings.
By Bruce Buchanan, Sebelist Buchanan Law PLLC
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) agreed to a settlement agreement with Macy’s over allegations that the national retailer violated the Immigration and Nationality Act (INA) by discriminating against work-authorized non-U.S. citizens at its Glendale, California, facility.
The OSC’s investigation was based on a charge filed by a lawful permanent resident (LPR) whose hiring was delayed in October 2015. The investigation found the employee was not able to begin working at Macy’s even though she showed sufficient proof of her work authorization because a Macy’s official incorrectly believed that LPRs were required to produce unexpired permanent resident cards, rather than any other document(s). The investigation also found that other human resource employees in Macy’s Glendale location were imposing the same unnecessary requirement on four other LPRS. In contrast, U.S. citizens were permitted to choose whichever valid documents they wanted to present to prove their work authorization. Under the INA, LPRs do not have to show their permanent resident cards when they start working; instead, they can choose whichever documentation the would like to present, such as a driver’s license and unrestricted social security card, from the lists of acceptable documents.
Under the settlement agreement, Macy’s will pay an $8,700 civil penalty, provide additional training to its employees and assess its employees’ understanding of applicable rules, and be subject to monitoring for 18 months, including periodically producing Form I-9 information to the OSC for review.
This settlement is just another instance of OSC’s aggressive approach to enforcing the anti-discrimination provisions under Section 12324b of the INA. To date in calendar year 2016, the OSC has settled eight discrimination cases. Even after all of this activity, I would estimate 50% of employers are not aware of the OSC and its authority.
By: Bruce Buchanan, Sebelist Buchanan Law PLLC
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached a settlement agreement with Powerstaffing Inc., a temporary staffing agency based in Edison, New Jersey, wherein the company agreed to pay $153,000 in civil penalties. Powerstaffing was alleged to have discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).
The OSC’s investigation found that from June 20, 2014, until December 15, 2015, Powerstaffing had a pattern or practice of requesting specific immigration documents from non-U.S. citizens for the I-9 forms. In contrast, Powerstaffing allowed U.S. citizens to present whichever valid documents they wanted to present to prove their work authorization. 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, such as a driver’s license and an unrestricted social security card.
Powerstaffing promptly resolved this matter by its staff starting proper I-9 practices. Besides the civil penalties, the settlement agreement requires Powerstaffing to be subject to OSC monitoring and review of its hiring policies for two years, and every four months Powerstaffing will provide OSC with a list of hires of all lawful permanent residents and OSC will choose 125 from the list to analyze their I-9s and documentation.
By: Bruce Buchanan, Sebelist Buchanan Law
The Office of Special Counsel for Immigrated-Related Unfair Employment Practices (OSC), a division of the Justice Department, reached a settlement agreement with Villa Rancho Bernardo Care Center (VRB), a skilled nursing facility in San Diego, resolving a claim of discrimination against work authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).
The OSC’s investigation found VRB discriminated against lawful permanent residents (green card holders) by requiring them to produce specific documents to prove their work authorization, while permitting U.S. citizens to show any valid work authorization documentation they chose. Specifically, during the interview and hiring processes, VRB requested that lawful permanent residents produce a permanent resident card. Lawful permanent residents are not required to show employers their permanent resident cards to work. Rather, like all other work-authorized employees, they can present their choice of valid documentation from the USCIS’s Lists of Acceptable Documents to establish their identity and work authorization. For example, lawful permanent residents can establish their work authorization by presenting a state or federal identification document and an unrestricted Social Security card.
Under the settlement agreement, VRB will pay $24,000 in civil penalties to the United States, undergo OSC-provided webinar training on the anti-discrimination provision of the INA and be subject to monitoring requirements by the OSC for a period of one year.
Updated 06-02-2016 at 11:56 AM by BBuchanan
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.