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Chinese Immig. Daily
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By Bruce Buchanan, Sebelist Buchanan Law
The Justice Department’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, reached an agreement with Brickell Financial Services Motor Club, Inc., d/b/a Road America Motor Club, Inc. (Road America), headquartered in Miami, Florida. The settlement resolves the IER’s investigation into whether the company violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when verifying their work authorization.
The IER concluded, based on its investigation, that Road America routinely requested that lawful permanent residents show their Permanent Resident Cards to prove their work authorization but did not request specific documents from U.S. citizens. The investigation further revealed that Road America required lawful permanent resident employees to re-establish their work authorization when their Permanent Resident Cards expired, even though federal rules prohibit this practice. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employees’ citizenship or national origin.
Under the settlement, Road America will pay a civil penalty of $34,200 and pay $1,044 to compensate a worker who lost wages due to its unfair documentary practices. Road America has also agreed to post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.
Unfortunately, the errors made by Road America are common among many employers. A good immigration training program could avoid these mistakes.
By: Bruce Buchanan, Sebelist Buchanan Law
The Office of Chief Administrative Hearing Officer (OCAHO) issued an interesting decision involving “document abuse” which was recently renamed “unfair documentary practices” in the new regulations. U.S. v. Mar-Jac Poultry, Inc., 12 OCAHO no. 1298 (March 2017). It was a split decision with the Administrative Law Judge (ALJ) for OCAHO finding Mar-Jac Poultry committed many document abuse violations while other allegations were not document abuse.
The case started with a charge filed by Edwin Morales, a TPS recipient, with the Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) alleging document abuse. Thereafter, OSC informed Mar-Jac that it was expanding its investigation to include “a possible pattern or practice of document abuse against non-U.S. citizens.”
Based on its investigation, the OSC filed a complaint with OCAHO alleging in Count I – Mar-Jac committed document abuse against Morales and “other similarly situated persons” and Count II – Mar-Jac engaged in a “pattern or practice of discrimination in the hiring and Employment Eligibility Verification Process.”
In its Motion for Summary Judgment, Mar-Jac argued the statute only prohibits document abuse as it relates to protected individuals - U.S. citizens (USCs), recent lawful permanent residents (LPRs), refugees and asylees. Since Morales was a TPS recipient with an Employment Authorization card (EAD), Mar-Jac argued he was not protected regarding the document abuse allegations. The ALJ determined that “claims of document abuse with an intent or purpose of discriminating against an individual based on citizenship status is limited to claims against statutorily-defined protected individuals as defined in 8 U.S.C. § 1324b(a)(6).” Since Morales was on TPS, the ALJ agreed with Mar-Jac’s defense that Morales was not a protected individual.
Concerning Count II – whether Mar-Jac engaged in a pattern or practice of discrimination, Mar-Jac conceded its HR employees required potential applicants to present a photo ID and a Social Security card in order to obtain an employment application. Without such, Mar-Jac did not provide them with an application.
Also, if a person checked a box on Section 1 of the I-9 form as a LPR or authorized to work and presented Lists B and C documents, such as a driver’s license and Social Security card, respectively, the Mar-Jac HR employee would request the LPR card or EAD. Mar-Jac’s witnesses stated this request was made to make sure the card was valid and they believed E-Verify required non-USCs to present their LPR card or EAD. The witnesses acknowledged they were mistaken in their beliefs. Mar-Jac conceded USCs were not requested to present a particular document.
Mar-Jac argued it had a legitimate, non-discriminatory reason, to verify the correct box was marked in Section 1, when its HR employees asked non-USCs to see their List A document – LPR card or EAD. Mar-Jac asserted it followed this practice in order to have Sections 1 and 2 accurately completed and to avoid non-compliance with the completion of the I-9 form, which could cause civil and criminal liability. Mar-Jac also argued it required non-USCs to present a List A document because of a mistaken belief that E-Verify required it; thus, it had no discriminatory intent. Furthermore, Mar-Jac asserted requests related to E-Verify are not covered by 8 U.S.C. § 1324b; thus, no violations should be found.
To establish a case of document abuse, the decision stated a complainant must show (1) “that, in connection with the employment verification process required by 8 U.S.C. § 1324a(b), an employer has requested from the employee more or different documents than those required or has rejected otherwise acceptable valid documents and (2) that either of these actions was undertaken for the purpose or with the intent of discriminating against the employee on account of the employee’s national origin or citizenship status.”
One of the issues in the case was the requisite intent required to prove the violations. The OSC asserted U.S. v. Life Generations, a 2014 OCAHO decision, stated an intent to discriminate means that a person “would have acted differently but for the protected characteristic.” Mar-Jac argued it had no intent to discriminate because a significant portion of its workforce were non-USCs. Furthermore, their actions were merely designed to “assist the applicant in satisfying the requirements of the Form I-9.” The ALJ stated discriminatory intent does not require “malice, ill will, or a malevolent nature.” Thus, Mar-Jac’s arguments were without merit.
The ALJ concluded the testimony of Mar-Jac’s HR employees established direct evidence of discriminatory intent – the requests to see a DHS-issued document, LPR card or EAD, was motivated by the individual’s LPR or work-authorized status. Thus, the ALJ found the company “engaged in prohibited documentary practices by virtue of both specifying the kind of document that a new hire had to present, and requesting an additional document when a new hire sufficiently presented Lists B and C documents. Moreover, Mar-Jac’s documentary practices were carried out for the purposes of satisfying employment verification requirements of 8 U.S.C. § 1324a(b).”
As for Mar-Jac’s remaining defense that it completed Section 1 as the preparer/translator and thus it needed to verify the information listed to avoid civil and criminal liability, the ALJ stated, “Although the preparer/translator attestation in Section 1 requires an attestation that the information contained therein is true and correct to the best of the preparer/translator’s knowledge, that standard does not require absolute metaphysical certainty – or even actual knowledge – regarding the information from the preparer/translator and in no way requires an employer to ask to see a document to verify the information.”
Therefore, the OCAHO ALJ found Mar-Jac committed the violations alleged in Count II. A determination on the civil penalties and back pay were left for a later time. Furthermore, Mar-Jac has the right to appeal the ALJ’s decision to the Chief Judge of OCAHO.
This decision shows employees can be mistaken on the proper manner to complete the I-9 form. Therefore, it is crucial that employers obtain regular training from immigration counsel on immigration compliance issues.
By Bruce Buchanan, Sebelist Buchanan Law
The Immigrant and Employee Rights Section (IER) of the Justice Department’s Civil Rights Division has reached a settlement agreement with Pizzerias, LLC, a pizza restaurant franchisee with 31 locations in Miami, Florida, where Pizzerias will pay a $140,000 civil penalty. The agreement resolves the IER’s investigation into whether Pizzerias violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when checking their work authorization documents.
The investigation concluded Pizzerias routinely requested that lawful permanent residents produce a specific document – a Permanent Resident Card (green card) – to prove their work authorization, while not requesting a specific document from U.S. citizens. This is referred to as document abuse. Lawful permanent residents may choose acceptable documents other than a Permanent Resident Card to prove they are authorized to work. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on citizenship or national origin.
Under the settlement, Pizzerias must pay a civil penalty of $140,000 to the United States, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements for two years.
The first two settlements by IER in Trump administration seem to reflect that the IER will continue to aggressively pursue employers that violated the INA.
By Bruce Buchanan, Sebelist Buchanan Law
Two related janitorial companies, Paragon Building Maintenance, Inc. and Pegasus Building Services Company, Inc., of Long Beach, California have settled claims with Immigrant and Employee Rights Section (IER) (formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practice) of the Department of Justice by agreeing to pay a penalty of $115,000 and to create a back pay fund of $30,000 to compensate eligible workers who lost pay due to these documentary practices. The settlement resolves the IER’s investigation into whether the companies violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when checking their work authorization documents.
The IER concluded Paragon and Pegasus routinely requested that lawful permanent residents show their permanent resident cards (green cards) to prove their work authorization while not requesting specific documents from U.S. citizens. Lawful permanents residents often have the same work authorization documents available to them as U.S. citizens, and may choose other acceptable documents besides the Permanent Resident Card to prove they are authorized to work. The investigation further revealed that the companies required lawful permanent resident employees to re-establish their work authorization when their permanent resident cards expired, even though federal law prohibits this practice.
Under the settlement, the companies also have agreed to post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.
This settlement is one of the first for the IER since President Trump took office. It will be interesting to see if the IER is as aggressive toward employers under the new president as they were in the last few years of the Obama administration.
By: Bruce Buchanan, Sebelist Buchanan Law
The Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, reached a settlement agreement with Levy Premium Foodservice Limited Partnership d/b/a Levy Restaurants. The settlement resolves the investigation of a charge filed by the charging party, a lawful permanent resident, against Levy’s Barclay Center restaurant in Brooklyn, New York, alleging discrimination in violation of the Immigration and Nationality Act (INA).
The IER concluded that Levy discriminated against two lawful permanent residents by improperly reverifying their employment eligibility because of their immigration status. It also determined that Levy improperly required them to present specific types of documents to re-establish their employment eligibility and suspended the charging party when he was unable to present such a document.
The anti-discrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on the employee’s citizenship, immigration status or national origin.
Levy cooperated throughout the investigation, quickly reinstated the charging party, and restored his lost wages and leave benefits. Under the settlement, Levy must pay a civil penalty of $2,500 to the United States, undergo IER-provided training on the anti-discrimination provision of the INA, and be subject for one year to IER monitoring and reporting requirements – providing the I-9 forms of all non-U.S. employees hired during this period of time to IER for review as to whether Levy Restaurants is abiding by the law.
This settlement demonstrates the need for employers to be careful as to the presentation of documentation by employees. Employers may not demand the presentation of certain documents, such as a green card. Rather, it is up to each individual employee to choose document(s) that are listed on the List of Acceptable documents.