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  1. Litigation Involving Nebraska Beef’s Reneged Settlement Continues

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A U.S. District Judge in Nebraska has ruled in favor of the Department of Justice’s Show Cause Motion in the never-ending saga of Nebraska Beef Ltd. reneging on a settlement that it reached in August 2015 with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (now the Immigrant and Employee Rights Section (IER)) of the Department of Justice.

    As you may recall, Nebraska Beef and the OSC reached a settlement concerning whether Nebraska Beef was discriminating against work-authorized immigrants by requiring non-U.S. citizens, but not similarly-situated U.S. citizens, to present specific documentary proof of their immigration status to verify their employment eligibility in violation of the Immigration & Nationality Act (INA). In the settlement, Nebraska Beef agreed to pay a $200,000 civil penalty.

    However, before the civil penalty was due, a Department of Justice press release stated the government “found” Nebraska Beef to have violated the law. The settlement had stated the OSC had a “reasonable cause to believe” Nebraska Beef had violated the INA. Nebraska Beef asserted the press release’s inaccuracy materially breached the settlement agreement because Nebraska Beef did not admit liability and excused the company’s payment of $200,000.

    Thereafter, the OSC filed for enforcement of the settlement agreement in federal court in Nebraska. The District Court found no material breach occurred and ordered Nebraska Beef to pay the $200,000 and perform all settlement obligations. After an appeal of the order, the Court stayed the company’s obligation to pay the $200,000 civil penalty but not the company’s other obligations – training, reporting, and notifying potential back pay claimants and providing such information to the IER of the DOJ.

    Nebraska Beef did not timely comply with the non-monetary portions of the order even though these provisions had not been stayed. Thus, the DOJ filed a Motion to Show Cause as to why Nebraska Beef was not in contempt of court.

    The District Court granted the government’s motion and ordered Nebraska Beef to show why it should not be held in contempt of court. I will update this case when the Court decides whether Nebraska Beef is in contempt of court.
  2. Prior Settlement Agreement Destroys Employee's OSC Claim

    By Bruce Buchanan, Sebelist Buchanan Law

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    Despite reaching a Settlement Agreement with Discover Financial Services, wherein the Complainant, was paid over $73,000, Ashntosh Sharma filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) alleging he was discriminated against because he is a lawful permanent resident (LPR). OSC declined to proceed with a complaint. Sharma then submitted his claim to the Office of Chief Administrative Hearing Officer (OCAHO), which dismissed his complaint because he had previously reached a Settlement Agreement, Waiver, and Release of Claims. See Sharma v. Discover Financial Services, LLC, 12 OCAHO no. 1292 (Dec. 2016)

    Sharma was employed by Discover for a period of time during which he alleged Discover favored H-1B visa holders over U.S. citizens or LPRs in training opportunities and promotions. Sharma applied for five job openings and two training opportunities but did not receive any of them. In October 2014 and January 2015, Sharma filed charges with the Equal Employment Opportunity Commission (EEOC) alleging discrimination and retaliation. After filing the charges, Sharma hired an attorney to negotiate a settlement. On May 29, 2015, Sharma and Discover reached an agreement where Discover paid Sharma over $73,000 and Sharma agreed to withdraw his EEOC charge and waive and release Discover from any other claims or liability.

    Before reaching this settlement, Sharma filed a charge with the OSC on March 15, 2015. After the settlement, Sharma filed a Complaint with OCAHO on April 27, 2016 alleging citizenship status discrimination and retaliation.

    Discover responded that Sharma’s claims overlapped with his EEOC complaint and the claims before OCAHO were released and waived by Sharma through the May 29 settlement and release. The Settlement Agreement, Waiver, and Release of Claims states the parties are settling “any and all claims that have been or could have been asserted by Sharma related to his employment with Discover and end any and all employment relationships between them.” Although the Settlement Agreement, Waiver and Release does not specifically list claims under 8 U.S.C. § 1324b (citizenship status discrimination, etc.), OCAHO quoted caselaw finding a party need not enumerate the specific claims an employee is waiving in a general release. Furthermore, Sharma was clearly aware of any claims under 8 U.S.C. § 1324b when he signed the Settlement Agreement as the alleged acts began as early as June 2014 and were set forth in his March 2015 OSC charge. Thus, OCAHO found the release covered any claims brought under 8 U.S.C. § 1324b. OCAHO also found the Settlement Agreement, Waiver and Release was knowing and voluntary given Sharma’s education and that he hired an attorney to negotiate the settlement. Furthermore, Sharma did not even challenge the knowing and voluntary nature of the release.

    For these reasons, OCAHO dismissed Sharma’s complaint. The question in my mind is why would Sharma pursue a claim before OCAHO when he clearly had released Discover for any further liability. It should be noted Sharma did not have legal counsel before OCAHO, presumably because counsel who negotiated the Settlement Agreement, Waiver and Release informed him that he lacked the basis of any further claims or liability against Discover.
  3. OSC Files Lawsuit against Nebraska Beef

    By Bruce Buchanan, Siskind Susser

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    The Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has filed a lawsuit against Nebraska Beef Ltd., of Omaha, Nebraska, for failing to comply with the terms of a settlement agreement (See prior blog entry - that the parties entered to resolve a case involving allegations of discriminating against work-authorized non-citizens.

    The Complaint alleges that Nebraska Beef entered into a settlement agreement with the Justice Department on Aug. 24, 2015, to resolve the OSC’s investigation into whether Nebraska Beef was discriminating against work-authorized non-citizens. The agreement requires Nebraska Beef to pay $200,000 as a civil penalty, and also to compensate affected workers who present valid claims for back pay. Although Nebraska Beef’s civil penalty payment was due 10 business days after the agreement was signed by both parties, the company has failed to make any payments. Nebraska Beef has stated that it will not comply with almost all of the terms of the agreement because it feels that the OSC’s press release announcing the agreement should have been worded differently. According to the OSC, the parties’ agreement does not contain any terms or provisions restricting the language in OSC’s press release.

    It is rare for a company to enter into a settlement agreement and thereafter not abide by it. I will keep you apprised on this lawsuit
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