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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 Buchanan, Sebelist Buchanan Law
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, recently filed a lawsuit against two Washington-based companies, Washington Potato Company and Pasco Processing LLC, alleging that they violated the Immigration and Nationality Act (INA) by discriminating against immigrants during the employment eligibility verification process because of their citizenship status.
According to the complaint filed with the Office of the Chief Administrative Hearing Officer (OCAHO), from at least November 2013 until at least October 2016, Washington Potato and Pasco Processing hired over 2,000 U.S. citizens (USCs) and approximately 800 lawful permanent residents (LPRs). Of the LPRs hired, 99.5% produced a List A document – their green card - to establish their work authorization while only 2% of the USCs hired produced a List A document, such as a U.S. passport or U.S. passport card. This information was gleaned by the Department of Homeland Security’s Monitoring and Compliance branch by reviewing data from E-Verify, which the two companies used.
The companies asserted the high rate of List A documents for LPRs was because these employees did not possess List B or C documents. However, the OSC alleged many LPR employees presented List B and C documents but the companies requested a specific document, the LPRs’ green card, for the Form I-9 and/or E-Verify from non-U.S. citizen employees, but allowed USCs the flexibility to present a variety of documents. Thus, the OSC alleged the companies treated LPRs and non-citizen employees differently than USCs and this treatment was intentional and discriminatory.
Under the INA, all workers, including non-U.S. citizens, must be allowed to choose freely from among the valid documentation that proves their work authorization. The INA prohibits employers from discriminating by unlawfully limiting some workers’ choices based on their citizenship status. I will keep you updated on the outcome of this litigation.
This complaint is an example of the downside of using E-Verify – the data entered by the employer is scrutinized by the Department of Homeland Security, who may refer the case to the OSC for investigation and litigation.
By Bruce Buchanan, Sebelist Buchanan Law
An Administrative Law Judge (ALJ) of the National Labor Relations Board (NLRB) held, in The Ruprecht Company, JD (NY)-14-16 (2016), that Ruprecht Co. violated Section 8(a)(5) of the National Labor Relations Act (NLRA) by unilaterally enrolling and implementing E-Verify without prior notice to UNITE HERE Local 1 (Union), who represented the bargaining unit employees.
The case started when Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on Ruprecht Co. subpoenaing the I-9 forms of their employees. Ruprecht Co. compiled and provided 262 Form I-9’s.
Company Enrolls in E-Verify Without Notifying the Union
Before ICE reached any decisions on the I-9 forms or the employees’ authorized status, Ruprecht Co. enrolled in E-Verify and began using it to check the authorized work status of new hires. Ruprecht Co. did not inform the Union of this event at that time. Ruprecht Co. said it did so “in order to avoid a catastrophic loss to its work force should another audit occur in the future.” Ruprecht Co. was not required by state or federal law to enroll in E-Verify. After enrollment, the Union was informed of the use of E-Verify by its members; thus a Union representative contacted Ruprecht Co. with suggested language from other collective bargaining agreements which precluded an employer from using E-Verify unless required to do so by state or federal law. Thereafter, Ruprecht Co. provided the Union with the NOI. On July 16, the company and Union held a bargaining session where Ruprecht Co. made a proposal to use E-Verify and informed the Union it was already using it.
ICE finds Certain Employees are Unauthorized to Work or Appear to be Unauthorized to Work
On July 10 and 14, 2015, ICE identified certain employees who were “deemed” to be unauthorized to work unless these employees presented valid documentation. The company notified the Union but refused to supply the names without a confidentiality agreement. On July 17, ICE provided Ruprecht Co. with a Notice of Suspect Documents (NSD) naming 194 employees that did not appear to be authorized to work. It stated those employees should be given an opportunity to present valid documentation and gave the company 10 days to verify their work authorization, terminate the employees or have fines by ICE.
Three days later, the company called a meeting, informing the employees of the Notice of Suspect Documents and its intent to begin terminating employees within a few days. On July 22, Ruprecht Co. began notifying employees of their termination due to the ICE audit. Apparently, the company never gave the employees an opportunity to present new documentation. The Union was never given a list of employees on the Notice of Suspect Documents because it refused to sign the confidentiality agreement.
Ruprecht Co. Violated NLRA by not notifying Union of Names on NSD and Use of E-Verify
As a result of the ICE audit, Ruprecht Co. lost 62 bargaining unit employees. The ALJ found it was clear law that Ruprecht Co. had to terminate all employees who were not authorized to work. However, the ALJ stated if the company had provided the Union with the names on the NSD, it may have been able to assist them in providing valid documentation. Therefore, the company’s refusal to supply the names to the Union violated Section 8(a)(5) of the NLRA.
Furthermore, the ALJ found the company’s enrollment in E-Verify was a term and condition of employment for which the company held an obligation to notify the Union and give the Union an opportunity to bargain about whether to enroll and use E-Verify. The company failed to do this; therefore, this also violated Section 8(a)(5) of the NLRA.
If an employer’s employees are represented by a union, the employer must give the union notice and opportunity to bargain about E-Verify and must, upon request, provide the names of the employees on the NSD. It should be noted an ALJ’s decision is not final and the losing party may appeal the decision to the NLRB. Stay tuned for further developments.
By: Bruce Buchanan, Sebelist Buchanan Law, PLLC
In two recent decisions, U.S. v. Golden Employment Group, Inc., 12 OCAHO nos. 1274 and 1277 (2016), the Office of the Chief Administrative Hearing Officer (OCAHO) found Golden Employment Group, a staffing company, committed 465 Form I-9 violations and was ordered to pay $209,600. Immigration and Customs Enforcement (ICE) sought a penalty of $305,525.
Inspection and Notice of Intent to Fine
After ICE served a Notice of Inspection on Golden Employment, the company requested and received an extension of time of three days to respond to the NOI; thus, all I-9s and documentation were due on April 15, 2013. Later, in May and June 2013, Golden Employment presented additional I-9 forms and supporting documentation to ICE.
Thereafter, ICE issued a Notice of Intent to Fine (NIF) alleging the violations in eight separate counts. Count I alleged Golden Employment failed to timely prepare and/or present 125 Form I-9s; count II alleged the company failed to prepare or present 265 Form I-9s for its employees; counts III, IV, and V were similar and alleged the company failed to ensure five employees properly completed section 1 and the company failed to complete section 2 and/or section 3, the company failed to ensure 22 employees properly completed section 1, and the company failed to properly complete section 2 and/or 3 of the I-9 form for 73 employees. Counts VI through VIII made similar allegations of the failure to timely prepare or present I-9 forms for 15 employees.
In April 2014, ICE served a Notice of Suspect Documents alleging the I-9 forms of 433 employees could not be verified as work-authorized. The company only contested seven of the 433 employees and ICE found those arguments to be without merit. Thus, all 433 employees were terminated by Golden Employment.
In serving the NIF, ICE determined that Golden Employment had an error rate of 35% and set the baseline penalty at $605 per violation. It treated the size of the company as a mitigating factor (somewhat surprising due to the hundreds of employees employed) and the seriousness of the violations as an aggravating factor. Thus, the penalty remained at $605 per violation.
Golden Employment’s Defenses
In its defense, Golden Employment’s owner, Paul Hughes, stated “he was led to believe that submissions could continue after April 15, 2013 to demonstrate compliance with the regulations.” When questioned where he obtained that belief, Hughes could not name the ICE auditor or officer nor produce any letters, emails or memorandum to support his assertion. Golden Employment asserts if these “late-filed” I-9 forms were considered, its error rate would be substantially reduced; thus, the baseline penalty would be substantially reduced and its penalty would be $63,250. OCAHO found this defense to be meritless.
Golden Employment also asserted approximately 50 employees worked less than 24 hours for the company; thus, it had no obligation to obtain a completed I-9 form for these employees. OCAHO held there is no statute, regulation, or case law to support this proposition; rather, the case law concerns where the employee was terminated before the third day of employment, when section 2 of the I-9 form must be completed by the employer. But the number of hours worked over a period of days does not relieve a company of its I-9 obligation, especially when the employee has reached the third day of employment. However, Golden Employment was relieved of any liability for failure to complete section 2 of the I-9 forms for those 29 employees, who worked less than three days from their first date of employment.
Golden Employment also asserted its use of E-Verify on five employees excused its failure to complete an I-9 form for these employees. This defense is without merit because the E-Verify program “does not purport to insulate an employer from the necessity of proper I-9 completion.”
Overall, Golden Employment was found liable 140 violations concerning the failure to timely present I-9 forms, 236 violations for failure to prepare I-9 forms, and 89 violations for failure to properly complete I-9 forms.
OCAHO determined Golden Employment was entitled to the 5% mitigating factors of no history of I-9 violations with ICE or its predecessor, good faith in the investigation and no evidence that it knowingly employed unauthorized workers. The latter two findings appear to be are contrary to OCAHO case law which states good faith must be shown before the issuance of the NOI and the mere presence of unauthorized workers, knowingly or unknowingly, creates a 5% aggravating factor for those unauthorized workers.
In conclusion, OCAHO assessed $500 each for the 236 violations of failure to prepare or present I-9 forms and $400 each for the 229 violations for failure to timely prepare I-9 forms or committing paperwork errors. Thus, the total penalty was $209,600 or approximately a 1/3 decrease in ICE’s proposed penalty.
Due to the substantial reduction in the penalties, almost $100,000, the employer smartly litigated the matter. At other times, an employer can reach a resolution with ICE which will substantially reduce the penalties. If ICE refuses to reduce the penalties more than 10% and a substantial amount of money is in dispute, litigation is usually the best course. Of course, part of the decision-making process is the types of violations and your defenses.
By Bruce Buchanan, Sebelist Buchanan Law
The Tennessee Legislature, with the Governor’s signature, has amended its non-mandatory E-Verify law to a mandatory E-Verify law, effective January 1, 2017.
In 2012, the State of Tennessee began to require large employers to use E-Verify or copy and maintain one of 11 identification documents, such as U.S. passport, permanent resident card, Employment Authorization card, driver’s license, and State of Tennessee ID card of all new hires. At the time of passage in 2011, there were a number of organizations opposing mandatory E-Verify, including the Chamber of Commerce. Beginning in 2013, the law expanded to cover employers with six or more employees; thus covering most employers in the State.
In the 2016 legislative session, it decided to revise E-Verify to make it mandatory for all new hires of employers with 50 or more employees. This portion of the statute is effective January 1, 2017. This change puts Tennessee in line with most other southern states, though the 50 or more employees is a higher number than other states.
As for penalties, if an employer fails to verify the work authorization of an employee, it will be fined $500 for a first violation, and moves upwards from there. If an employer refuses to comply with the State order, it faces a fine of $500 per day.
If any of the employees are undocumented, the State will suspend the employer’s business license until it complies with the state law – verify the employee is authorized to work through E-Verify.
The action by the Tennessee Legislature is somewhat unusual as the last state to pass mandatory E-Verify was North Carolina in 2012. Also, in 2012, Pennsylvania passed a law to add E-Verify for state contractors. These are the last states to pass E-Verify legislation.
The threshold of 50 or more employees seems to be a compromise to get additional support from the super-majority Republicans in the legislature, many of which have strong ties to businesses. By using the 50-employee threshold, the law will not affect an enormous number of state businesses and many of the larger employers, such as International Paper and Singer Sewing, already use E-Verify to authorize their new hires.