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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.
By Bruce Buchanan, Sebelist Buchanan Law
An individual’s claim of document abuse by a company was dismissed by Office of Chief Administrative Hearing Officer (OCAHO) because the company was abiding by E-Verify laws in declining a List B document without a photograph. See Johnson v. Progressive Roofing, 12 OCAHO no. 1295 (Jan. 2017).
Michael Johnson was hired by Progressive Roofing and thereafter presented his documents in the process of completing his I-9 form – voter registration card (List B document) and two List C documents- a birth certificate and a social security card. Progressive Roofing told Johnson that the documentation was insufficient because the voter registration card did not contain a photograph. Although unclear whether Progressive Roofing explained the insufficiency, the company was enrolled in E-Verify which requires a List B document, if presented, to contain a photograph. (Alternatively, an employee may present a List A document.)
Johnson filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (since renamed the Immigrant and Employee Rights Section) alleging document abuse for the company’s failure to accept his List B and C documents. OSC dismissed the charge for insufficient evidence of a violation but advised him of the right to file his own complaint with OCAHO. Johnson did so, alleging the same violation. Thereafter, Progressive Roofing filed an Answer and Motion for Summary Decision asserting it did not violate the law because it was following E-Verify practices and procedures by requiring a List B document containing a photograph or List A be presented. Johnson did not respond to the company’s motion.
OCAHO explained document abuse occurs when an employer requests more or different documents than necessary or rejects valid documents and does so for the purpose of discriminating on the basis of citizenship status or national origin. Thus, document abuse takes two elements, an act and intent. It has not been a strict liability offense since the amendments to 8 U.S.C. §1324b(a)(b) in 1996.
OCAHO found Johnson did not establish a prime facie case of discrimination because Progressive Roofing was an enrolled participant in E-Verify, which requires any List B document presented to contain a photograph, and did not request more or different documents than required by law. Assuming arguendo, Johnson established a prime facie case, Progressive Roofing met its burden by showing it had a legitimate nondiscriminatory reason for requesting a List B document with a photograph – to be in compliance with federal law. Finally, Johnson did not allege this defense was pretextual. Therefore, OCAHO dismissed Johnson’s complaint.
This decision reminds employers that the use of E-Verify requires following certain rules, including only accepting List B documents with a photograph. In rejecting Johnson’s List B document, Progressive Roofing was merely following the applicable law.
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