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By Bruce Buchanan, Sebelist Buchanan Law
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (just renamed the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice) reached a settlement to resolve claims that J.E.T. Holding Co. Inc. discriminated against U.S. citizens, lawful permanent residents, and certain work-authorized immigrants in violation of the Immigration and Nationality Act (INA). J.E.T. is a company based in Saipan, Commonwealth of the Northern Mariana Islands (CNMI), where it operates a restaurant, bowling alley and amusement center.
The investigation found evidence that for approximately the first five months of 2016, J.E.T. engaged in a pattern or practice of refusing to hire U.S. citizens, lawful permanent residents, and other work-authorized individuals for several dishwasher positions. OSC concluded that J.E.T. failed to consider qualified U.S. citizen applicants and others based on their citizenship or immigration status because of a preference for hiring non-immigrant foreign workers with CW-1 visas. The CW-1 visa grants temporary work authorization to its beneficiaries and is only available in the CNMI.
Under the terms of the settlement, J.E.T. will pay a civil penalty of $12,000, establish a backpay fund of $40,000 to compensate qualified claimants for any lost wages through a claims process, train its workers on the anti-discrimination provision of the INA, and be subject to department monitoring.
By Bruce Buchanan, Sebelist Buchanan Law
Mary’s Gone Crackers Inc., a natural food company based in Gridley, California, has agreed to pay $1.5 million and to establish a corporate compliance program under a non-prosecution agreement reached with the U.S. Attorney’s Office following an investigation into potential criminal violations of federal immigration laws.
According to the agreement, in March 2012, Immigration and Customs Enforcement (ICE) audited Mary’s Gone Crackers’ I-9 forms for its employees. Thereafter, ICE provided a Notice of Suspect Documents (NSD) stating that 49 of Mary’s Gone Crackers’ employees appeared not to be authorized to work in the United States. After one employee provided corrected documentation, Mary’s Gone Crackers informed ICE that the other 48 had all resigned or been terminated.
However, within less than a month, Mary’s Gone Crackers rehired at least 13 employees that it claimed had been terminated or resigned, all of them under new names. One of those 13, an operations supervisor, never stopped working for Mary’s Gone Crackers at all, but instead continued to work under a new assumed name and received payment as an independent contractor, rather than through the company’s ordinary payroll. Several other Mary’s Gone Crackers employees knew that the operations supervisor was not eligible to work in the United States. When a search warrant was executed at the company’s Gridley facility in January 2013, at least 12 of the 13 rehired individuals were still working at Mary’s Gone Crackers.
During the course of the I-9 audit and its rehiring of individuals, Mary’s Gone Crackers had at times consulted with an outside counsel. After the search warrant, Mary’s Gone Crackers cooperated with the government’s investigation and took remedial measures, including terminating employees, stopping use of the outside counsel involved, and taking various steps to ensure compliance with immigration laws and I-9 regulations, including use of E-Verify and the Social Security Number Verification Service.
The company also established an anonymous tip line so that employees can report any potential I-9 issues. The non-prosecution agreement requires Mary’s Gone Crackers to establish a corporate compliance program covering its I-9 procedures and its use of the E‑Verify system, and requires timely and complete disclosure of violations of immigration laws or regulations within 24 hours of discovery. It also requires Mary’s Gone Crackers to provide corporate compliance reporting to the United States Attorney’s Office for two years. No federal criminal charges will be brought against Mary’s Gone Crackers for the investigated conduct if the company complies with the terms of the non-prosecution agreement.
By: Bruce Buchanan, Sebelist Buchanan Law
The U.S. Department of Justice published a rule on June 30 that will increase penalties for unlawfully employing immigrants, and unfair employment practices tied to immigration, and “so-called paperwork violations” for I-9 forms, effective August 1, 2016.
The DOJ regulation will “increase “paperwork violations” related to I-9 forms from a maximum of $1,100 to $2,156. The minimum penalty per violation increases from $110 to $216.
Under the rule, the minimum penalty for the unlawful employment of immigrants will jump from $375 to $539, while the maximum will go from $3,200 to $4,313. And that’s just for a first order. Employees who receive three or more orders will be facing a new maximum penalty of $21,563 for unlawfully employing immigrants.
And as for unfair immigration-related employment practices, a first order could cost a new top penalty of $3,563 per person discriminated against, up from $3,200. The minimum penalty increases from $375 to $445.
The new regulation applies to violations that took place after November 2, 2015. I would anticipate the substantial increase in the fines will lead to significantly more OCAHO litigation since historically OCAHO reduces the penalties by between 30 and 45%.
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 PLLC
An Administrative Law Judge (ALJ) of the Department of Labor (DOL) has ordered Medical Dynamic Systems Inc to pay back pay to a H-1B worker of more than $59,000 in fees and back wages for violating the H-1B visa laws. The ALJ said the health care staffing company must pay Philippine national Vicente D. DeDios the $3,600 he unlawfully paid in connection with his H-1B visa processing and an additional $55,587 in back wages.
DeDios alleged Medical Dynamic Systems agreed to sponsor him for a nurse manager position at $37.06 per hour but only gave him 24 hours of work after he arrived in the U.S. He also alleged it unlawfully collected H-1B filing fees (Employers must pay the H-1B filing fees).
The company argued the complaint to DOL was untimely. However, the ALJ rejected this argument and found DeDios filed his complaint “well within” the labor condition application (LCA) employment authorization period. Additionally, the ALJ found Medical Dynamic Systems failed to raise the timeliness argument at the agency hearing, and the record contained no definitive evidence of when the complaint was filed.
Medical Dynamic also argued that it was only liable for five days that DeDios was “available to work,” because on the other days he failed to respond to phone calls and emails and did not show up for interviews. ALJ rejected this argument and found the company did not meet its burden in showing that DeDios was in non-productive status because of conditions unrelated to employment.