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By Bruce Buchanan, Sebelist Buchanan Law
OCAHO issued another recent decision in U.S. v. East Coast Foods, Inc. d/b/a Roscoe’s House of Chicken N Waffles, 12 OCAHO no. 1281 (2016), wherein it reduced ICE’s proposed penalty of $38,708 to $18,350 for a variety of reasons.
As it sounds, Roscoe’s is a small restaurant in California which got served with a Notice of Inspection on June 19, 2013. By July 29, ICE served Roscoe’s with a Notice of Discrepancies for two employees. Roscoe’s resolved those situations.
At this point, ICE served Roscoe’s with a Notice of Intent to Fine (NIF) alleging in Count I - 31 violations of failing to ensure employees properly completed Section I, Count II – one instance where the employee failed to properly complete Section 2, and Count III – failure to prepare and/or present I-9 forms for four employees. ICE sought a penalty of $38,709 based upon a baseline penalty of $935, which was enhanced by 5% each for the seriousness of the violations, its lack of good faith and employment of unauthorized workers.
However, it refused to mitigate the fine for being a small business even though it qualified as such with 60 employees. The enhancement for unauthorized workers was mystifying because ICE failed to allege the employment of any unauthorized workers.
Of the 31 violations in Count I, the employees failed to check an immigration status box – a blatant violation. In Count II, the employer only recorded a List C document and failed to record an accompanying List B document. Concerning Count III, all parties agreed no I-9 forms were presented for four employees.
Concerning the five aggravating / mitigating factors, OCAHO awarded a 5% reduction for Roscoe’s being a small business. On lack of good faith, it is well-known case law that a company’s poor rate of compliance does not equal bad faith. Thus, OCAHO declined to aggravate the penalty by 5% due to bad faith. OCAHO agreed the violations were serious; thus, the 5% enhancement.
Overall, OCAHO believed a lower fine was appropriate and assessed the penalties accordingly – Count I - $500 each x 31 = $15,500; Count II - $450 for 1 violation; and Count III - $600 each x 4 = $2,400. Thus, OCAHO assessed a penalty of $18,350.
By: Bruce Buchanan, Sebelist Buchanan Law PLLC
Recently, the Office of Chief Administrative Hearing Officer (OCAHO) found Muniz Concrete & Contracting, Inc. (MCCI), based out of Texas, to be in violation of the Immigration Reform and Control Act Section 1324a for 32 violations. Due to these violations, OCAHO determined the appropriate penalty was $16,275 although ICE sought a penalty of $19,989.
The case started with a Notice of Inspection, served on September 27, 2013 and quickly followed with a Notice of Suspect Documents (NSD), Notice of Discrepancies, and a Notice of Technical or Procedural Failures. The Notice of Discrepancies listed 19 employees where ICE discovered a discrepancy related to their identity and employment authorization. Concerning the NSD, ICE found 45 employees had not proven valid work authorization and the company was told to give the employees an opportunity to present “new and better” work authorizations
and without such, they should be terminated because they did not have valid work authorization. MCCI terminated a number of employees after receipt of the NSD. ICE also found 84 technical errors for which MCCI was given 10 days to correct without facing a penalty.
Finally, ICE issued a NIF alleging three counts - knowingly employing two unauthorized employees, failure to prepare 10 Form I-9s, and failure to properly ensure completion or the completion of 20 Form I-9s.
MCCI argued that under OCAHO case law, the fine amount was too high. ICE responded it simply utilized the fine matrix. Since there were 32 substantive violations out of 89 Form I-9s, it determined MCCI should be penalized $605 per violation because the percentage was between 30 and 39%. ICE enhanced the base penalty by 5% for the seriousness of the violations and another 5% for the hiring of six unauthorized workers. Furthermore, ICE charged the minimum of $375 each for knowingly employing the unauthorized workers.
ICE asserted MCCI had constructive knowledge of the unauthorized status of two employees because their work authorization cards had expired. ICE failed to provide any analysis of why it set these penalties at the lowest level. OCAHO found “knowingly” continuing to employ an unauthorized worker was more serious than paperwork violations; thus, it increased the penalty to $800 each (still 25% of the possible $3200 penalty).
On the ten violations for failure to prepare an I-9 form or failure to timely prepare one, there was little dispute of the facts. Same applies for the 20 alleged substantive paperwork violations – no employee signature; no A numbers for lawful permanent residents, no box checked as to status; or only a list C document recorded in Section 2.
There were two faults within ICE’s analysis of the penalties. One, it refused to consider a 5% mitigating factor even though MCCI was clearly a small employer with about 50 employees. Two, it did not provide any definitive evidence of the unauthorized status of some employees. Instead, it relied on the fact that the individuals were listed on the NSD. But, as we all should know by now, being listed on a NSD is not proof of unauthorized status.
Based upon the overall facts of the case, ICAHO decided to reduce penalties for Counts II and III. Though, as previously stated, it increased the penalty for the two Count I violations. OCAHO ordered MCCI to pay a fine of $16,275, a reduction of about 13%.
By Bruce Buchanan, Sebelist Buchanan Law PLLC
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) agreed to a settlement agreement with Macy’s over allegations that the national retailer violated the Immigration and Nationality Act (INA) by discriminating against work-authorized non-U.S. citizens at its Glendale, California, facility.
The OSC’s investigation was based on a charge filed by a lawful permanent resident (LPR) whose hiring was delayed in October 2015. The investigation found the employee was not able to begin working at Macy’s even though she showed sufficient proof of her work authorization because a Macy’s official incorrectly believed that LPRs were required to produce unexpired permanent resident cards, rather than any other document(s). The investigation also found that other human resource employees in Macy’s Glendale location were imposing the same unnecessary requirement on four other LPRS. In contrast, U.S. citizens were permitted to choose whichever valid documents they wanted to present to prove their work authorization. Under the INA, LPRs do not have to show their permanent resident cards when they start working; instead, they can choose whichever documentation the would like to present, such as a driver’s license and unrestricted social security card, from the lists of acceptable documents.
Under the settlement agreement, Macy’s will pay an $8,700 civil penalty, provide additional training to its employees and assess its employees’ understanding of applicable rules, and be subject to monitoring for 18 months, including periodically producing Form I-9 information to the OSC for review.
This settlement is just another instance of OSC’s aggressive approach to enforcing the anti-discrimination provisions under Section 12324b of the INA. To date in calendar year 2016, the OSC has settled eight discrimination cases. Even after all of this activity, I would estimate 50% of employers are not aware of the OSC and its authority.
By Bruce Buchanan, Sebelist Buchanan Law
In a rare move that is helpful to employers in immigration compliance, Colorado repealed its requirement that its employers have to complete and maintain a separate affirmation form besides the I-9 form and maintain copies of documents presented for employment verification. The repeal is effective on August 10, 2016.
As we all know, the Federal law, Immigration Control and Reform Act, does not require an employer to copy and retain documentation presented for employment verification. However, that does not mean that it is not a good idea to copy and retain such documentation but that is always a hot debate between immigration compliance attorneys. In most instances, I favor copying and retaining the documentation for a variety of reasons.
This repeal is great news for Colorado employers because employers should not have to essentially complete duplicate forms for the same purpose.
The new law is silent on whether an employer must retain previously completed affirmation forms and I-9 documentation. Seemingly the best approach is to retain those documents for current employees and destroy the affirmation forms when an employee is terminated. As for retention of I-9 documentation, an employer needs to be consistent in whether it retains this documentation. Thus, it is probably best to keep the existing documentation until the employee is terminated and then apply the “purge” rule – retain the I-9 and documentation for three years from the employee’s date of hire or one year from the employee’s termination, whichever is later.
As for new employees hired as of August 10, 2016, a company could implement a new rule eliminating the retention of the documentation. If one does so, make sure the rule is in writing, preferably in your immigration compliance policy (if you don’t have one, you should retain competent immigration compliance counsel to draft one) and be consistent in its use. Lack of consistency, if based on citizenship status or national origin could lead to a complaint with the Office of Special Counsel (OSC) or the EEOC.
With Colorado’s repeal, Tennessee becomes the only state that may require retention of an I-9 type document. Under current Tennessee law, one must retain one such document or use E-Verify. As of January 1, 2017, E-Verify will become mandatory for all employers with 50 or more employees but those employers with less than 50 employees will still have to use E-Verify or retain one I-9 type document.
By Bruce Buchanan, Sebelist Buchanan Law
An Administrative Law Judge (ALJ) of the Department of Labor (DOL) reversed DOL’s efforts to conduct an expansive investigation. Initially, one employee, Sergey Nefedyev, filed a charge with the DOL alleging he was not paid for one and one-half months when he was working for Volt Information Sciences on a H-1B visa. The parties resolved the case for $12,000 in back pay.
But, the DOL decided to expand this single complaint on a H-1B visa violation to cover 80 other employees and sought $330,000 in back wages.
The ALJ cited to a recent decision of the 8th Circuit Court of Appeals in Greater MO Medical Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132 (8th Cir. 2015). In so doing, he followed the reasoning of the 8th Circuit which stated:Rather than authorize an open-ended investigation of the employer and its general compliance without regard to the actual allegations in the aggrieved-party complaint, § 1182(n)(2)(A) expressly ties the Secretary’s initial investigatory authority to the complaint and those specific allegations “respecting [an employer’s alleged] failure to meet a condition specified in [a labor condition application] or [an employer’s] misrepresentation of material facts in such [a labor condition application]” for which the Secretary finds “reasonable cause to believe” the employer committed the alleged violation. Read naturally, the Secretary’s authority to conduct an initial investigation under § 1182(n)(2)(A) is based upon the Secretary finding reasonable cause to believe the employer’s specific misconduct as alleged in the complaint violates the INA. That reasonable-cause finding limits the scope of the initial investigation.
Thus, the ALJ found the DOL had overstepped its bounds in this case.
It will be interesting to see if this analysis is used in other settings as often Wage and Hour and the National Labor Relations Board will expand the scope of its investigation beyond the contents of the charge.