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I-9 E-Verify Immigration Compliance

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  1. OSC Settles with Staffing Company Who Required U.S. Birth Certificate

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) reached a settlement agreement with Cumberland Staffing Inc., doing business as AtWork Cumberland Staffing (ACS), a temporary staffing agency located in Cookeville, Tennessee, to resolve an allegation that ACS engaged in citizenship discrimination by requiring a U.S. birth certificate in order to be considered for employment. This requirement discriminated against work-authorized immigrants and naturalized U.S. citizens in violation of the Immigration and Nationality Act (INA).

    The OSC initiated its investigation after a Tennessee resident notified it of an ACS job posting that included a U.S. birth certificate requirement. The investigation found that between December 2015 and February 2016, ACS created and published a job posting stating that applicants for machine operator positions at a client company must present a U.S. birth certificate. The discriminatory posting was published on several job search engine websites during this time period.

    In the absence of a legal basis to do so, such as a law, regulation or government contract that requires U.S. citizenship restrictions, employers, recruiters and referrers for a fee may not limit job opportunities or otherwise impose barriers to obtaining employment based on an individual’s citizenship, immigration status or national origin. By requiring a U.S. birth certificate – a document that only non-naturalized U.S. citizens possess – to be considered for an employment opportunity, ACS’s job posting created a discriminatory barrier for work-authorized individuals, such as naturalized U.S. citizens, U.S. nationals, lawful permanent residents, asylees and refugees.

    Under the settlement agreement, ACS will pay a civil penalty of $1,200, remove all specific document requirements from its job postings except where required by law, train staff on proper employment verification and reverification procedures, including attendance at a OSC webinar on anti-discrimination, and ensure that trained staff or legal counsel review future job advertisements.
    The takeaway from this settlement is do not require certain documentation, such as a U.S. birth certificate, that will discriminate against other work-authorized indiduals
  2. DOL Orders Payment of Over $2 Million for Violations of H-2A Program

    By Bruce Buchanan, Sebelist Buchanan Law

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    An administrative law judge (ALJ) of the U.S. Department of Labor (DOL) found Gonzalo Fernandez, the president and operator of Fernandez Farms, to have violated numerous laws concerning H-2A visa workers and ordered payment of over $2 million.

    The ALJ found the company required each H-2A worker to pay about $1600 from their wages in illegal kickbacks to cover the administrative costs of the H-2A program. For this violation, the ALJ ordered Fernandez to pay $410,850 to the affected workers.

    The ALJ also found Fernandez was not paying the correct piece/wage rate and overtime, nor providing free housing to H-2A workers. For these violations, Fernandez was ordered to pay approximately $650,000.

    Overall, Fernandez was ordered to pay approximately $1.1 million to the affected workers and approximately $1.3 million in civil penalties to the DOL. Furthermore, Fernandez Farms was barred from participating in the H-2A visa program for three years.

    Not only did Fernandez commit the above violations, the ALJ also found he threatened and coerced workers to deter them from reporting the violations and forced them to hide or lie to the DOL investigators.
  3. Staffing Company agrees to Pay $175,000 in OSC Settlement

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Justice Department’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached an agreement with TEG Staffing Inc., also known as Eastridge Workforce Solutions, a temporary staffing agency headquartered in San Diego, to resolve allegations that they discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).

    The OSC’s investigation found that from about March 2014 until about September 2015, Eastridge had a pattern or practice of requesting specific immigration documents from non-U.S. citizens for the Form I-9 and E-Verify processes. In contrast, Eastridge 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 unrestricted Social Security card.
    Under the terms of the settlement agreement, which is effective for two years, Eastridge will pay $175,000 in civil penalties, attend training by the OSC through a webinar on anti-discrimination provisions, and undergo department monitoring and review of its processes for verifying the work authorization of newly hired employees.

    This settlement is just another example of the OSC’s strict enforcement of the INA with large civil penalties.
  4. OCAHO Orders Restaurant, Which Kept No I-9 Forms, to Pay Over $33,000

    By Bruce Buchanan, Sebelist Buchanan Law

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    In a very interesting decision which involved the smuggling of individuals into the United States to work for restaurants, the Office of the Chief Administrative Hearing Officer (OCAHO) ordered Para Tacos La Chilanga to pay $33,379.50. See U.S. v. Para Tacos La Chilanga, 12 OCAHO no. 1286 (2016).

    Immigrations and Customs Enforcement (ICE) started this case before the issuance of the Notice of Inspection (NOI); rather, it started with meeting with one of the restaurant’s employees, who stated nine employees working at one of the restaurants were undocumented, were paid in cash and had money deducted to pay for their smuggling fees. One of these undocumented workers confirmed this information, including he was smuggled into the United States. Another undocumented worker stated one of the restaurant owners assisted with smuggling him into the United States and garnished wages to pay for the smuggling fees. Thereafter, ICE served a search warrant at one restaurant location and consent searches at the other restaurant location. The searches led to detention of eight employees, who admitted to undocumented status.

    Only after ICE had gathered all of this information did it serve the restaurant with a NOI. In response, the employer provided no I-9 forms or any employment records. The only employment records provided to ICE were through a search warrant and consisted of two notebooks which listed employee’s names and days worked.

    Based upon this evidence, ICE issued a Notice of Intent to Fine (NIF). ICE set the baseline penalty to $935 per violation due to a 100% error rate – no I-9 forms were presented for any employees. ICE enhanced the penalties by 15 per cent based on lack of good faith, seriousness of the violations, and employment of 32 unauthorized workers. Thus, ICE set the penalties at $1075.25 per violation.
    Because there was no issue on the number of violations by the employer, the only issue was the amount of the penalties. OCAHO agreed to the aggravation of the penalties for lack of good faith based upon its failure to keep basic employment records which appeared to be an intentional effort to subvert the I-9 requirements. OCAHO also agreed that the violations were serious.
    As for the employment of unauthorized workers, the lack of records assisted the restaurant. OCAHO found ICE could only prove 10 out of the 32 employees were undocumented. OCAHO stated it understood ICE’s frustration that the lack of documentation caused it not to be able to prove unauthorized status for 22 workers but it had to follow the law.

    Thus, OCAHO ordered the restaurant to pay $33,379.50. As a side note, an arrest warrant was issued for one of the restaurant’s owners for “alien smuggling.”

    This case is a textbook on how an employer should not conduct business. The civil penalties may be the least of the owner’s problems after being charged with “alien smuggling.”
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  5. Restaurant owner pleads guilty to harboring unauthorized workers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A restaurant owner pleaded guilty to harboring undocumented workers for profit and tax evasion, following an investigation by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations and the Internal Revenue Service’s Criminal Investigation.

    Yaowapha Ritdet of Ukiah, California admitted she knowingly hired Thai nationals who were illegally present in the United States to work at her restaurants, Ruen Tong Thai Cuisine and the Walter Café.

    Ritdet further admitted she underpaid employees and instructed them not to speak to anyone about their immigration status and willfully filed false individual income tax returns for 2007 through 2011, failing to disclose income received from her two restaurants, as well as rental income and a foreign bank account. She also admitted failing to accurately report employment taxes for her restaurant workers, who were paid in cash. Ritdet is scheduled to be sentenced on February 22, 2017.
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