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By Bruce Buchanan, Sebelist Buchanan Law
Office of Chief Administrative Hearing Officer (OCAHO) found it did not have jurisdiction concerning alleging allegations of national origin discrimination and retaliation against a U.S. Army captain. See Windsor v. Captain Landeen, 12 OCAHO no. 1294 (Dec. 2016).
Washington Younggil Kim Jung Windsor (“Windsor”) sought employment as a recruiter at the U.S. Army Recruiting Command in New York. Windsor was not hired and alleged in a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) that it was because he is from South Korea. (At this time, Widsor was a lawful permanent resident. He later became a U. S. citizen).
The OSC dismissed Windsor’s charge because it determined it did not have jurisdiction over the U.S. Army. However, the OSC told Windsor that he could pursue a complaint with OCAHO against the U.S. Army and Captain Landeen. Thereafter, Windsor filed a complaint before OCAHO alleging the same facts as he did in his charge with the OSC.
OCAHO initially determined that despite the complaint being filed against Captain Landeen, it alleged acts of Captain Landeen in his official capacity with U.S. Army. Thus, it reviewed whether a complaint can be brought against the U.S. Army under the Immigration and Nationality Act.
OCAHO found the U.S. Army was a part of the U.S. Department of Defense, a federal agency. Based upon that finding, it determined “absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” OCAHO found no such waiver existed under the INA. Thus, it followed OCAHO caselaw which has held “federal government agencies are not amenable to suit under 8 U.S.C. § 1324b” (cases alleging discrimination due to citizenship status, national origin, retaliation or document abuse). Based upon this analysis, OCAHO dismissed Windsor’s complaint.
By Bruce Buchanan, Sebelist Buchanan Law
Despite reaching a Settlement Agreement with Discover Financial Services, wherein the Complainant, was paid over $73,000, Ashntosh Sharma filed a charge with the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) alleging he was discriminated against because he is a lawful permanent resident (LPR). OSC declined to proceed with a complaint. Sharma then submitted his claim to the Office of Chief Administrative Hearing Officer (OCAHO), which dismissed his complaint because he had previously reached a Settlement Agreement, Waiver, and Release of Claims. See Sharma v. Discover Financial Services, LLC, 12 OCAHO no. 1292 (Dec. 2016)
Sharma was employed by Discover for a period of time during which he alleged Discover favored H-1B visa holders over U.S. citizens or LPRs in training opportunities and promotions. Sharma applied for five job openings and two training opportunities but did not receive any of them. In October 2014 and January 2015, Sharma filed charges with the Equal Employment Opportunity Commission (EEOC) alleging discrimination and retaliation. After filing the charges, Sharma hired an attorney to negotiate a settlement. On May 29, 2015, Sharma and Discover reached an agreement where Discover paid Sharma over $73,000 and Sharma agreed to withdraw his EEOC charge and waive and release Discover from any other claims or liability.
Before reaching this settlement, Sharma filed a charge with the OSC on March 15, 2015. After the settlement, Sharma filed a Complaint with OCAHO on April 27, 2016 alleging citizenship status discrimination and retaliation.
Discover responded that Sharma’s claims overlapped with his EEOC complaint and the claims before OCAHO were released and waived by Sharma through the May 29 settlement and release. The Settlement Agreement, Waiver, and Release of Claims states the parties are settling “any and all claims that have been or could have been asserted by Sharma related to his employment with Discover and end any and all employment relationships between them.” Although the Settlement Agreement, Waiver and Release does not specifically list claims under 8 U.S.C. § 1324b (citizenship status discrimination, etc.), OCAHO quoted caselaw finding a party need not enumerate the specific claims an employee is waiving in a general release. Furthermore, Sharma was clearly aware of any claims under 8 U.S.C. § 1324b when he signed the Settlement Agreement as the alleged acts began as early as June 2014 and were set forth in his March 2015 OSC charge. Thus, OCAHO found the release covered any claims brought under 8 U.S.C. § 1324b. OCAHO also found the Settlement Agreement, Waiver and Release was knowing and voluntary given Sharma’s education and that he hired an attorney to negotiate the settlement. Furthermore, Sharma did not even challenge the knowing and voluntary nature of the release.
For these reasons, OCAHO dismissed Sharma’s complaint. The question in my mind is why would Sharma pursue a claim before OCAHO when he clearly had released Discover for any further liability. It should be noted Sharma did not have legal counsel before OCAHO, presumably because counsel who negotiated the Settlement Agreement, Waiver and Release informed him that he lacked the basis of any further claims or liability against Discover.
By Bruce Buchanan, Sebelist Buchanan Law
The 10th Circuit Court of Appeals has upheld a decision of the Office of Chief Administrative Hearing Officer (OCAHO) in Split Rail Fence Company, Inc. v. USA (10th Cir. Dec. 2016). In doing so, it found Split Rail violated the law by retaining 10 employees after having constructive knowledge of their undocumented status.
In 2009, Immigration and Customs Enforcement (ICE) provided a Notice of Inspection (NOI) and a Notice of Suspect Documents (NSD) concerning 32 employees, to Split Rail. The NSD stated the I-9 documentation reviewed by ICE shows certain individuals are not authorized to work in the U.S. and “unless the employees present valid identification and employment eligibility documentation acceptable for completing the Form I-9, other than the documentation previously submitted to you, they are considered by ICE to be unauthorized to work in the United States."
Split Rail videotaped serving the NSD on the 32 employees. At that time, 23 of the 32 employees admitted they were unauthorized to work and Split Rail terminated them. However, nine employees insisted they were authorized to work and Split Rail accepted their verbal statements without requiring new documentation to support these assertions.
Thereafter, Split Rail sought guidance from the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) on how it should respond to NSD without violating IRCA’s anti-discrimination provision. Although OSC stated it could not provide an advisory opinion, it stated that a NSD “may provide a non-discriminatory reason” to re-verify an employee’s employment eligibility. Despite this guidance, Split Rail declined to request documentation for the nine employees in question. Later, Split Rail asserted their position on re-verification was consistent with OSC’s guidance, which OCAHO and the Court totally disagreed with.
After ICE served Split Rail with a Notice of Intent to Fine (NIF), Split Rail settled the matter. Inexplicably, the settlement only involved substantive paperwork violations, not the continued employment of the nine employees. Apparently, ICE believed Split Rail had terminated all 32 employees.
In June 2011, ICE returned with another NOI. Several months later, ICE issued a new NSD. Since nine of the 10 employees in the NSD were the same as 2009, Split Rail did not take any action because the employees had previously stated they were authorized to work. After ICE issued another NIF, Split Rail’s owner wrote a letter to ICE wherein he stated he “had absolutely no reason to believe... that any of the employees in the 2011 NSD are anything but law abiding residents” of the U.S. He also noted “each appeared authorized to work in the United States because they had bank accounts, houses, and mortgages.” OCAHO and the Court found the owner’s statements were not a substitute for requiring employees in question to provide new documentation to support verification.
The Court found ICE established a prima facie showing of the employee’s unauthorized status with evidence that ICE’s computer search of its records showed employees were suspected to be unauthorized due to false I-9 documentation. Furthermore, evidence of the NSD and the employer’s inaction to re-verify the individual’s work eligibility established prima facie evidence of Split Rail’s constructive knowledge of the employees’ unauthorized status. The Court noted constructive knowledge meant “knowledge which may fairly be inferred through notice of certain facts and circumstances which lead a person, through the exercise of reasonable care, that would indicate that the alien is not authorized to work.” See also 8 C.F.R. § 274a.1.
Split Rail’s defense included testimony from a retired ICE agent that errors may result from USCIS and/or DHS database searches. Additionally, Split Rail relied on the owner’s testimony that the nine employees assured him that they were authorized to work and the employees had bank accounts, homes, mortgages and cars.
Although OCAHO and the Court acknowledged mistakes can be made in NSDs, ICE relied upon computer searches and uncontested investigation reports. Plus, ICE provided an opportunity to employees to present alternative documentation. But, the employees never did so. The Court found Split Rail failed to rebut ICE’s prima facie case. Specifically, Split Rail’s response to the NSD, though its owner’s actions and statements, was inadequate. Thus, the Court agreed Split Rail had constructive knowledge of the employee’s unauthorized status.
Concerning the 10th employee in question, Split Rail accepted a foreign passport with an I-551 stamp authorizing his employment for one year in the completion of the employee’s I-9 form. The Court stated, upon the expiration of the stamp, Split Rail had a duty to reverify the employee’s work status but failed to do so. Split Rail’s argument that the employee was a lawful permanent resident and did not need to re-verified was rejected because the I-551 stamp was only employment authorization for one year. Once Split Rail failed to re-verify the employee after the expiration of his I-551 stamp, the Court found Split Rail was working an unauthorized employee.
This decision is an example of what not to do when an employer receives a NSD. If Split Rail had followed the correct procedure in response to the NSD, it would likely not have penalized over $30,000 for its I-9 violations.
By: Bruce Buchanan, Sebelist Buchanan Law
A Virginia attorney, Sunila Dutt, pled guilty in a New Jersey federal court to criminal charges for submitting false documents to USCIS and Department of Labor and obstructing an investigation. These acts were part of a scheme to fraudulently obtain H-1B visas for foreign workers of two information technology companies, SCM Data Inc. and MMC Systems Inc.
SCM Data and MMC Systems conspired with Dutt to falsify paperwork submitted to the federal government that stated the workers had full-time “in house” positions with the companies. In fact, SCM Data and MMC Systems would only pay the foreign IT consultants after placing them in roles working for third-party clients. Dutt also provided fabricated employment documents to the DOL after it started an audit of both companies. Furthermore, Dutt advised one of the foreign workers to lie to the USCIS about living arrangements to extend visa status.
Dutt will be sentenced in February 2017 at which time he faces up to five years in prison and a $250,000 fine.
By: Bruce Buchanan, Sebelist Buchanan Law
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), an agency within the Department of Justice, reached an agreement resolving claims that 1st Class Staffing LLC, a staffing company based in Orem, Utah, discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).
The OSC’s investigation found that 1st Class Staffing’s office in Fontana, California routinely requested that non-U.S. citizens provide specific immigration documents to establish their authorization to work. However, it did not request specific immigration documents to establish their authorization to work from U.S. citizens. 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. Failure to allow such because of their citizenship, immigration status or national origin is unlawful.
Under the terms of the settlement agreement, 1st Class must pay for lost wages to the charging party whose complaint initiated the investigation; pay $17,600 in civil penalties to the United States; ensure all relevant personnel have the current version of the M-274 – I-9 Handbook for Employers, and M-775 – USCIS E-Verify Manual; train its human resources staff on the anti-discrimination provision of the INA by attending an OSC webinar; provide the OSC every 4 months for the next year a list of all individuals hired, including name, hire date and citizenship status, from which the OSC may select up to 150 individuals to review their I-9 forms; and review and revise its policies and procedures to comply with the requirements of the INA’s anti-discrimination provision.