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I-9 E-Verify Immigration Compliance

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  1. Janitorial Companies Settle Immigration-Related Discrimination with IER

    By Bruce Buchanan, Sebelist Buchanan Law

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    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.
  2. Can Discharged Undocumented Workers Receive Reinstatement?

    By Bruce Buchanan, Siskind Susser

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    In Mezonos Maven Bakery, 362 NLRB No. 41 (2015), the National Labor Relations Board (“Board”) considered whether unlawfully discharged undocumented workers may receive “conditional reinstatement.” On remand from the Second Circuit Court of Appeals, the Board concluded that the workers would be entitled to reinstatement on the condition that they prove their eligibility to work in the United States.

    This case arose when five employees were discharged from Mezonos Maven Bakery (“Mezonos”) in Brooklyn, New York. They filed a charge with the Board, claiming they were engaged in protected activities under the National Labor Relations Act. Mezonos did not dispute this issue; rather, the company asserted the workers were not entitled to any remedy – back pay or reinstatement – because they were not authorized to work in the United States. Mezonos also asserted that it offered to reinstate five employees if they could provide valid work authorization documents, but none of the employees did.

    On the issue of back pay, an Administrative Law Judge ("ALJ") found that the workers were entitled to back pay even though they were not authorized to work. The ALJ was silent as to the issue of reinstatement. On administrative appeal, the Board reversed the ALJ’s decision to award back pay to the workers, citing the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (undocumented workers were not entitled to back pay after their discharge). The Board’s decision was appealed to the Second Circuit U.S. Court of Appeals where it was remanded back to the Board for consideration of the sole issue of reinstatement.

    On remand, and in its final order on March 27, 2015, the Board held that conditional reinstatement was appropriate in the Mezonos case. It explained that conditional reinstatement “is an appropriate remedy where […] an employer knowingly employs individuals who lack authorization to work in the United States and then discharges them in violation of the NLRA. Such a remedy is consistent with the policies of both NLRA and Immigration Reform and Control Act (IRCA).” Mezonos at p. 3.

    The Board also cited Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), in which the Supreme Court approved of a conditional reinstatement remedy in cases involving unlawfully discharged undocumented workers. The Sure-Tan court explained that making a reinstatement order conditional on compliance with immigration laws eliminates any potential inconsistency with those laws.

    Furthermore, the Board cited one of its own prior decisions in A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995) in which it held a conditional reinstatement order (requiring discriminatees to complete an I-9 form and present documentation reflecting work authorization) promoted the policy goals of IRCA and the NLRA.

    The Board concluded that conditional reinstatement does not conflict with the U.S. Supreme Court’s more recent decision in Hoffman Plastic because that decision did not prevent reinstatement where it is conditioned on an employee providing proof of work authorization.

    The Takeaway
    This case highlights the importance of employers verifying their employees’ work eligibility. Although the remedy of a conditional reinstatement may be available for discharged undocumented workers, this issue might never have been litigated if Mezonos had taken proper steps from the beginning to verify the work eligibility of those five employees.

    ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .

    Updated 04-06-2015 at 09:38 AM by BBuchanan

  3. I-9 Guidance on Employment of Asylees & Refugees; by Bruce Buchanan, Siskind Susser

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    For employers, there is a good possibility that an asylee or refugee could apply for employment at your company. The most recent annual report from the U.S. Department of Health and Human Services reflected a total of 58,238 arrivals to 49 states in a single year.

    The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices and the Office of Refugee Resettlement (ORR) has published a letter detailing the employment eligibility requirements for asylees and refugees. One of the highlights of the letter was frequently asked questions, and below is a selection of those questions:

    1. Must non-U.S. citizens provide a DHS-issued document, such as an Employment Authorization Card (Form I-766), to fulfill the Form I-9 document requirements?

    No. An individual who is not a U.S. citizen does not have to submit a DHS-issued document if he or she can fulfill the Form I-9 requirements with other documents. For example, an asylee who presents an unexpired state driver's license (List B document) and an unrestricted Social Security card (List C document) fulfills the Form I-9 requirements and may not be required to present a DHS-issued document.

    2. What is the "receipt rule" for refugees?

    Under the "receipt rule" for refugees during the first 90 days in the U.S., a refugee may meet the Form I-9 requirements by presenting to his or her employer the departure portion of the Form I-94, containing a refugee admission stamp. This submission only completes the Form I-9 temporarily. Within 90 days, the refugee must provide the employer with either (1) an unrestricted Social Security card and an unexpired List B document or (2) an unexpired employment authorization document issued by DHS.

    3. Is a Form I-94 with an asylee stamp considered a receipt as well?

    No. The Form I-94 with an asylee stamp is considered an unexpired employment authorization document issued by the Department of Homeland Security appearing on List C, item number B. Therefore it could be presented in conjunction with a document from List B. An I-94 with an asylee stamp does not expire and should not be reverified.

    4. Does an employee need to submit the same proof of identity and employment eligibility at reverification as he or she did on the initial Form I-9?

    No. An employee may present an unexpired document that shows either an extension of his or her initial employment authorization or a new unexpired document evidencing work authorization from either List A or List C, including an unrestricted Social Security card. The employee is not required to present proof of identity at reverification.

    Updated 04-07-2014 at 11:42 AM by BBuchanan

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