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I-9 E-Verify Immigration Compliance

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  1. OCAHO Issues $500 Penalty to Small Business

    By Bruce Buchanan, Siskind Susser

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    In what may be the smallest I-9 form penalty assessed against an employer, the Office of Chief Administrative Hearing Officer (OCAHO) has reduced Immigration and Customs Enforcement’s (ICE) proposed penalty of $1,776.50 to $500 in U.S. v. Keegan Variety, LLC, 11 OCAHO no. 1238 (2014).

    Keegan Variety is a mom-and-pop convenience store in Van Buren, Maine on the Canadian border. The store employed only two people – a mother and cousin of the owners. When the two employees were hired in 2006 and 2010, Keegan Variety did not complete I-9 forms for them. It stated they were unaware of any such requirement and because they were relatives, they knew they were authorized to work as U.S. citizens.

    After ICE served a Notice of Inspection on Keegan Variety, it determined the company had failed to timely prepare the two I-9 forms. Since the company only had two employees, ICE found 100% error rate and set the baseline fine at $935 per violation. ICE reduced the fine by 5% because of the small size of the business; thus, the penalty was $888.25 per violation.

    After Keegan Variety declined to pay the $1,776.50 penalty, the case was litigated before OCAHO. In its decision, OCAHO declined to mitigate the penalty based upon good faith or the lack of seriousness of the violations. OCAHO found ignorance of the law -- not knowing of the requirement to have I-9 forms on each employee -- was not an affirmative defense; thus, it declined to mitigate the fine based upon the company’s good faith. Furthermore, OCAHO found the violations to be “serious” but declined to aggravate the penalty on this basis.

    OCAHO used the analysis set forth in U.S. v. Ice Castles Daycare, 10 OCAHO no. 1142 (2011), and U.S. v. Red Bowl of Cary, 10 OCAHO no. 1206 (2013), and the Small Business Regulatory Enforcement Fairness Act, to find the penalty should be reduced to $500 for the following reasons:

    Penalty adjustment to the lower midrange of permissible penalties is warranted due to the small size of the business, the fact that no unauthorized aliens have been hired, the fact that since 2006 Keegan has hired only two employees who are relatives known to be citizens of the United Sates, the general public policy toward leniency to small business entities, and Keegan’s ability to pay the proposed fine on account of operating losses suffered in 2012 and 2013.

    This case begs the question: was it really worth government resources to litigate a case where the maximum penalty was $1,776.50 ? ICE should not be expected to ignore blatant I-9 violations, but perhaps this case could have been resolved with a written warning.

    A copy of the OCAHO decision is available here.
    Cite as U.S. v. Keegan Variety, LLC, 11 OCAHO no. 1238 (2014)
  2. OSC Settles Discrimination Claim against Diversified Business Consulting Group

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, has reached a settlement with Diversified Business Consulting Group Inc. (“DB Consulting”), an information technology staffing agency headquartered in Silver Spring, Maryland.

    The settlement resolves allegations that DB Consulting’s human resources personnel required non-U.S. citizens, but not U.S. citizens, to present specific types of documents during the employment eligibility verification process to establish their work authority. The INA’s anti-discrimination provision prohibits employers from specifying documents that employees must present during the employment eligibility verification process based on an employee’s citizenship status or national origin.

    Under the settlement agreement, DB Consulting will pay $7,700 in civil penalties to the United States. DB Consulting has also agreed to change its hiring policies and be subject to monitoring of its hiring practices for the next one (1) year and will be required to do the following:

    1) Advise OSC of any changes in the company’s employment policies as they relate to nondiscrimination on the basis of citizenship status and national origin at least thirty (30) days prior to the effective date of such revised policies;

    2) Send all current human resources personnel, and all new human resources personnel to attend a compliance training webinar presented by the OSC; and

    3) Send OSC copies of completed Forms I-9, including attachments for all employees hired between 6 months and one year after the effective date of the settlement agreement.

    A copy of the DB Consulting settlement agreement can be viewed here.
  3. Arizona Businessman and Managers Sentenced for Immigration Violations

    By Bruce Buchanan, Siskind Susser

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    The former owner of Danny’s Family Car Wash and more than a dozen of the company’s former managers and supervisors, were sentenced in federal court in Arizona last month. The defendants pleaded guilty to their roles in a multi-year corporate scheme involving identity theft to employ undocumented immigrants.

    The investigation into the company was led by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI) and resulted in the arrest of more than 30 suspects including operators, managers, and employees connected with Danny’s Family Car Wash.

    Beginning in April 2011, the car wash was audited by ICE HSI agents and forced to terminate over 900 employees after the audit found employees had presented fraudulent, insufficient, or ineligible documents at the time of their initial hire. The company attempted to replace the 900 employees with individuals who were authorized to work, but according to ICE those legal replacements were “too expensive” and the car wash’s owner, Danny Hendon, instructed his managers to “bring back” the old employees.

    As a result, Danny’s Family Car Wash was found to have engaged in a multi-year, company-wide scheme to rehire undocumented immigrants using stolen identities in order to pass E-Verify checks. The scheme continued until August 2013, when ICE HSI special agents executed search warrants at the car wash’s corporate headquarters and at various worksite locations. Over 230 unauthorized aliens were found working at the car wash’s locations on the day of the search.

    Danny’s Family Carwash owner, Danny Hendon, was sentenced to 12 months in prison and one year of home confinement. The corporate entities that composed the car wash chain forfeited bank accounts totaling $156,295.77, and Hendon agreed to divest himself of any future ownership, managerial or profit-sharing interest in the organization. The other defendants received sentences ranging from probation to three months in prison.

    This case is reminiscent of the Grand America Hotel and Waste Disposal cases in which company managers rehired unauthorized employees following compliance audits.

    A copy of the press release from ICE HSI can be found here.

    Cite as United States v. Danny’s Management Services LLC, et al., No. 13-CR-01143-PHX-NVW (D. Ariz.)
  4. DOJ Settles Immigration Discrimination Claims Against Generations Healthcare

    By Bruce Buchanan, Siskind Susser
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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, has reached a settlement with Life Generations Healthcare LLC, d/b/a Generations Healthcare, a company that runs assisted living facilities throughout California. The current settlement follows a decision by the Office of Chief Administrative Hearing Officer (OCAHO) finding that GHC engaged in a pattern and practice of document abuse against foreign-born individuals, including naturalized U.S. citizens, and discriminated against two foreign-born, work authorized individuals in violation of the Immigration and Nationality Act.

    This case began on September 30, 2011, when the OSC filed a lawsuit against Generations Healthcare alleging that it discriminated against authorized foreign-born workers by requiring them to produce more or different documents to establish authority to work than it required of citizens born in the United States, by refusing to honor documents tendered that on their face reasonably appeared to be genuine, and by engaging in a pattern or practice of document abuse against foreign-born, work authorized individuals. After a trial, OCAHO ruled in favor of the government.

    The current settlement resolves issues in the case that OCAHO did not address in its earlier ruling. As part of the settlement, Generations Healthcare will pay $208,000 to be divided in the following manner:

    - $119,313 in back pay to two victims of discrimination; and
    - $88,687 in civil penalties to the United States.

    Generations Healthcare has also agreed to change its hiring policies and be subject to monitoring of its hiring practices for the next two (2) years and will be required to do the following:

    1) Revise its employment policies as they relate to nondiscrimination and provide them for review and approval by OSC within thirty (30) days of the effective date of the settlement agreement;

    2) Advise OSC of any changes in the company’s employment policies as they relate to nondiscrimination on the basis of citizenship status and national origin at least thirty (30) days prior to the effective date of such revised policies;

    3) Send all current human resources personnel, and all new human resources personnel to attend a compliance training webinar hosted by the OSC; and

    4) Send OSC copies of completed Forms I-9, including attachments -- every four months -- for all employees hired during that period.

    Acting Assistant Attorney General for the Civil Rights Division, Ms. Vanita Gupta, took this opportunity to remind employers to “review their hiring policies and employment eligibility verification practices to ensure that they comply with federal anti-discrimination law.”

    A copy of the Life Generations Healthcare settlement agreement can be viewed here.
  5. OSC Settles Discrimination Suit Against California Bakery

    By Bruce Buchanan

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, has reached a settlement with La Farine Bakery, a small french bakery chain with locations in the San Francisco Bay Area. The settlement resolves allegations that La Farine violated the Immigration and Nationality Act (INA) by improperly rejecting a worker’s valid work authorization documents because of the worker’s citizenship status.

    The Immigration and Nationality Act (INA) anti-discrimination provision specifically prohibits employers from placing additional documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin.

    As part of the settlement, La Farine Bakery will pay $30,300 to be divided in the following manner:

    - $19,000 in front and back pay to the plaintiff, less deductions and withholdings;
    - $7,200 in non-wage damages to the plaintiff;
    - $3,800 to the Legal Aid Society-Employment Law Center in San Francisco for attorney fees;
    - $300 civil penalty to the United States.

    The bakery has also agreed to change its hiring policies and be subject to monitoring of its hiring practices for the next two (2) years and will be required to do the following:

    1) Revise its employment policies as they relate to nondiscrimination and provide them for review and approval by OSC within thirty (30) days of the effective date of the settlement agreement;

    2) Advise OSC of any changes in the company’s employment policies as they relate to nondiscrimination on the basis of citizenship status and national origin at least thirty (30) days prior to the effective date of such revised policies;

    3) Send all current human resources personnel, and all new human resources personnel to attend a compliance training webinar hosted by the OSC; and

    4) Send OSC copies of completed Forms I-9, including attachments -- every four months -- for all employees hired during that period.

    A copy of the La Farine settlement agreement can be viewed here.
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