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By Bruce Buchanan, Sebelist Buchanan Law
In another decision involving a small restaurant in Hamburg, the Office of Chief Administrative Hearing Officer (OCAHO) reduced the restaurant’s penalty from $46,657 to $33,725 for four violations of failing to prepare and/or present I-9 forms and 67 violations for failing to properly complete I-9 forms. See U.S. v. 3679 Commerce Place, Inc. d/b/a Waterstone Grill, 12 OCAHO no.1296 (2017).
Since Waterstone Grill admitted liability, the only issue before OCAHO was the amount of the penalties. Immigration and Customs Enforcement (ICE) used $935 as the baseline penalty per violation based on a violation rate of over 50%. In an unusual twist, ICE found a 25% mitigation was warranted based upon the restaurant’s good faith in preparing the I-9 Forms. Normally, the five statutory factors, including good faith, are worth the 5% mitigation or aggravation. ICE also mitigated by 5% each due to the restaurant’s small size and the 67 employees in Court II were determined to be eligible for employment. ICE aggravated by 5% for the seriousness of the violations.
Waterstone Grill asserted it deserved mitigation for three of the four employees in Count I because they were authorized to work and several non-statutory factors, including general public policy of leniency toward small businesses, its cooperation with ICE during the investigation, including enrolling in E-Verify, and its inability to pay the $47,000 penalty.
OCAHO found 25% mitigation for good faith was unwarranted, especially where ICE offered no explanation for the size of the mitigation. However, some mitigation, which was not defined, was warranted. Concerning its inability to pay, OCAHO found it failed to show it could not pay the penalty, but found the proposed penalty should be viewed in light of the company’s financial situation. Although OCAHO found an employer’s post-inspection remedial measures may support mitigation, it declined to find such here.
OCAHO found ICE failed to prove the employees in Count I were unauthorized to work. OCAHO stated “it does not always follow that a factor found not to be aggravating (which is normally where the factor of unauthorized workers is found) must necessarily and automatically be mitigating.” However, in this case, OCAHO decided this was a mitigating factor.
OCAHO determined the proposal penalty should be reduced to $475 each for a total penalty of $33,725. As the facts demonstrate, if Waterstone would have performed an internal I-9 audit before ICE arrived with the NOI, most of the I-9 violations could have been corrected and not subject to a penalty.
By Bruce Buchanan, Sebelist Buchanan Law
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (just renamed the Immigrant and Employee Rights Section of the Civil Rights Division of the Department of Justice) reached a settlement to resolve claims that J.E.T. Holding Co. Inc. discriminated against U.S. citizens, lawful permanent residents, and certain work-authorized immigrants in violation of the Immigration and Nationality Act (INA). J.E.T. is a company based in Saipan, Commonwealth of the Northern Mariana Islands (CNMI), where it operates a restaurant, bowling alley and amusement center.
The investigation found evidence that for approximately the first five months of 2016, J.E.T. engaged in a pattern or practice of refusing to hire U.S. citizens, lawful permanent residents, and other work-authorized individuals for several dishwasher positions. OSC concluded that J.E.T. failed to consider qualified U.S. citizen applicants and others based on their citizenship or immigration status because of a preference for hiring non-immigrant foreign workers with CW-1 visas. The CW-1 visa grants temporary work authorization to its beneficiaries and is only available in the CNMI.
Under the terms of the settlement, J.E.T. will pay a civil penalty of $12,000, establish a backpay fund of $40,000 to compensate qualified claimants for any lost wages through a claims process, train its workers on the anti-discrimination provision of the INA, and be subject to department monitoring.
By Bruce Buchanan, Sebelist Buchanan Law
An individual’s claim of document abuse by a company was dismissed by Office of Chief Administrative Hearing Officer (OCAHO) because the company was abiding by E-Verify laws in declining a List B document without a photograph. See Johnson v. Progressive Roofing, 12 OCAHO no. 1295 (Jan. 2017).
Michael Johnson was hired by Progressive Roofing and thereafter presented his documents in the process of completing his I-9 form – voter registration card (List B document) and two List C documents- a birth certificate and a social security card. Progressive Roofing told Johnson that the documentation was insufficient because the voter registration card did not contain a photograph. Although unclear whether Progressive Roofing explained the insufficiency, the company was enrolled in E-Verify which requires a List B document, if presented, to contain a photograph. (Alternatively, an employee may present a List A document.)
Johnson filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) (since renamed the Immigrant and Employee Rights Section) alleging document abuse for the company’s failure to accept his List B and C documents. OSC dismissed the charge for insufficient evidence of a violation but advised him of the right to file his own complaint with OCAHO. Johnson did so, alleging the same violation. Thereafter, Progressive Roofing filed an Answer and Motion for Summary Decision asserting it did not violate the law because it was following E-Verify practices and procedures by requiring a List B document containing a photograph or List A be presented. Johnson did not respond to the company’s motion.
OCAHO explained document abuse occurs when an employer requests more or different documents than necessary or rejects valid documents and does so for the purpose of discriminating on the basis of citizenship status or national origin. Thus, document abuse takes two elements, an act and intent. It has not been a strict liability offense since the amendments to 8 U.S.C. §1324b(a)(b) in 1996.
OCAHO found Johnson did not establish a prime facie case of discrimination because Progressive Roofing was an enrolled participant in E-Verify, which requires any List B document presented to contain a photograph, and did not request more or different documents than required by law. Assuming arguendo, Johnson established a prime facie case, Progressive Roofing met its burden by showing it had a legitimate nondiscriminatory reason for requesting a List B document with a photograph – to be in compliance with federal law. Finally, Johnson did not allege this defense was pretextual. Therefore, OCAHO dismissed Johnson’s complaint.
This decision reminds employers that the use of E-Verify requires following certain rules, including only accepting List B documents with a photograph. In rejecting Johnson’s List B document, Progressive Roofing was merely following the applicable law.
By: Bruce Buchanan, Sebelist Buchanan Law
Effective January 18, 2017, U.S. Department of Justice’s (DOJ) Civil Rights Division has implemented a final rule to update regulations concerning enforcement of employment-related anti-discrimination provisions under the “unfair immigration-related employment practices” section of the Immigration and Nationality Act (INA).
One of the most interesting changes is the Office of Special Counsel for Immigration-Related Unfair Employment Practices, usually referred to as Office of Special Counsel or OSC, is being renamed the Immigrant and Employee Rights Section. It will remain part of DOJ’s Civil Rights Division. However, the individual in charge of the Immigrant and Employee Rights Section will still be referred to as Special Counsel due to statutory language. Thus, this may cause some confusion for attorneys and the public.
Probably the most significant change in the regulations is a definition of “discriminate” to clarify that an employer’s intent to discriminate must be based on national origin or citizenship status. This definition of intent does not consider what reason an employer may have had. Under the new rule, DOJ explains that if the employer is intentionally treating the permanent resident differently for an unlawful reason, such as citizenship status, then the employer has discriminated.
Other significant changes in the new regulations include:
Individuals who submit a discrimination claim within the 180-day period provided by law now have an additional 45 days to submit information if the Special Counsel decides that they did not provide enough information to meet the requirements for a “charge”;Charges may be filed after the 180-day time limit under certain circumstances;The Special Counsel may file a complaint based on an investigation the office initiated, up to five years after the date of alleged discrimination;Definition of the term “citizenship status” includes refugees and asylees, which is consistent with Special Counsel’s current practice;Definition of the statutory phrase – “more or different documents than required under such section” to be consistent with OCAHO case law;Definition of the term “charge” to make it broader as to what is acceptable; andDefinition of the term “hire”.
By: Bruce Buchanan, Sebelist Buchanan Law
In one of its last decisions of 2016, the Office of Chief Administrative Hearing Officer (OCAHO) reduced the penalty of a restaurant from $96,398 to $58,850 for 107 violations. See U.S. v. Pegasus Family Restaurant, Inc.,12 OCAHO no. 1293 (Dec. 2016).
This case stated almost three years ago – in December 2013 – when Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on Pegasus, a small restaurant in Hamburg, New York. Pegasus provided approximately 81 Form I-9s. Thereafter, ICE filed a Notice of Intent to Fine (NIF) alleging Pegasus failed to prepare and/or present 31 Form I-9s and failed to properly complete 76 Form I-9s - it failed to record any documents in section 2, only recorded a List B document, a driver’s license or state ID card, or failed to ensure the completion of Section 1 with a signature or attesting to the employee’s status, U.S. citizen, permanent resident, etc. Pegasus admitted liability on all the I-9 violations. Thus, the only issue before OCAHO was the amount of the penalty.
In seeking a penalty of $96,398, ICE used a baseline penalty of $935 per violation due to Pegasus having a violation rate of over 90%. ICE found Pegasus’s small size and the individuals in Count I as eligible for employment to be mitigating factors while the seriousness of the violations to be an aggravating factor. The remaining statutory factors of history of violations and good faith were considered neutral.
Pegasus asserts its lack of history of violations and no conclusive evidence that any of the employees were unauthorized to work were mitigating factors. Furthermore, it asserts the following non-statutory factors warrant mitigation – general public policy of leniency toward small businesses, company’s high turnover rate, its cooperation with ICE during the investigation, including enrollment in E-Verify, and its inability to pay the proposed penalty.
OCAHO agreed with Pegasus that the government failed to prove any of the employees were unauthorized to work. In an unusual finding, OCAHO stated this was a mitigation factor, rather than a neutral factor, although it recognized that it could have been accepted as a neutral factor. However, OCAHO declined to find the lack of a history of I-9 violations as a mitigating factor.
Concerning its inability to pay, OCAHO found it failed to show it could not pay the penalty, but found the proposed penalty was “unduly punitive.” Thus, OCAHO considered the company’s financial situation.
Although OCAHO found an employer’s post – inspection remedial measures may support mitigation, it declined to final such in this case. Furthermore, it declined to view a high turnover rate as a mitigating factor.
In conclusion, OCAHO found the penalty should be reduced from between $888 and $935 per violation to $550 per violation. Thus, this total penalty was $58,850. As the facts demonstrate, if Pegasus would have performed an internal I-9 audit before ICE arrived with the NOI, many of the I-9 violations could have been corrected and not subject to a penalty.