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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In a rare move that is helpful to employers in immigration compliance, Colorado repealed its requirement that its employers have to complete and maintain a separate affirmation form besides the I-9 form and maintain copies of documents presented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.
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.