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I-9 E-Verify Immigration Compliance

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  1. Can Discharged Undocumented Workers Receive Reinstatement?

    By Bruce Buchanan, Siskind Susser

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    In Mezonos Maven Bakery, 362 NLRB No. 41 (2015), the National Labor Relations Board (“Board”) considered whether unlawfully discharged undocumented workers may receive “conditional reinstatement.” On remand from the Second Circuit Court of Appeals, the Board concluded that the workers would be entitled to reinstatement on the condition that they prove their eligibility to work in the United States.

    This case arose when five employees were discharged from Mezonos Maven Bakery (“Mezonos”) in Brooklyn, New York. They filed a charge with the Board, claiming they were engaged in protected activities under the National Labor Relations Act. Mezonos did not dispute this issue; rather, the company asserted the workers were not entitled to any remedy – back pay or reinstatement – because they were not authorized to work in the United States. Mezonos also asserted that it offered to reinstate five employees if they could provide valid work authorization documents, but none of the employees did.

    On the issue of back pay, an Administrative Law Judge ("ALJ") found that the workers were entitled to back pay even though they were not authorized to work. The ALJ was silent as to the issue of reinstatement. On administrative appeal, the Board reversed the ALJ’s decision to award back pay to the workers, citing the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) (undocumented workers were not entitled to back pay after their discharge). The Board’s decision was appealed to the Second Circuit U.S. Court of Appeals where it was remanded back to the Board for consideration of the sole issue of reinstatement.

    On remand, and in its final order on March 27, 2015, the Board held that conditional reinstatement was appropriate in the Mezonos case. It explained that conditional reinstatement “is an appropriate remedy where […] an employer knowingly employs individuals who lack authorization to work in the United States and then discharges them in violation of the NLRA. Such a remedy is consistent with the policies of both NLRA and Immigration Reform and Control Act (IRCA).” Mezonos at p. 3.

    The Board also cited Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984), in which the Supreme Court approved of a conditional reinstatement remedy in cases involving unlawfully discharged undocumented workers. The Sure-Tan court explained that making a reinstatement order conditional on compliance with immigration laws eliminates any potential inconsistency with those laws.

    Furthermore, the Board cited one of its own prior decisions in A.P.R.A. Fuel Oil Buyers Group, 320 NLRB 408 (1995) in which it held a conditional reinstatement order (requiring discriminatees to complete an I-9 form and present documentation reflecting work authorization) promoted the policy goals of IRCA and the NLRA.

    The Board concluded that conditional reinstatement does not conflict with the U.S. Supreme Court’s more recent decision in Hoffman Plastic because that decision did not prevent reinstatement where it is conditioned on an employee providing proof of work authorization.

    The Takeaway
    This case highlights the importance of employers verifying their employees’ work eligibility. Although the remedy of a conditional reinstatement may be available for discharged undocumented workers, this issue might never have been litigated if Mezonos had taken proper steps from the beginning to verify the work eligibility of those five employees.

    ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .

    Updated 04-06-2015 at 09:38 AM by BBuchanan

  2. OSC’s Authority to Investigate USCIS Referrals Is Defended by OCAHO

    By Bruce Buchanan, Siskind Susser

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    As immigration attorneys and readers of my blog have noticed, over the past several years, many of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) investigations of employers concerning discrimination and/or document abuse have begun with referrals from the U.S. Citizenship and Immigration Services (USCIS). In United States v. Louisiana Crane Company, 11 OCAHO no. 1246, an administrative law judge (ALJ) for the Office of Chief Administrative Hearing Officer (OCAHO) found that OSC does have the authority to investigate these cases after a referral from the USCIS.

    The case started after the USCIS made a referral to the OSC for alleged pattern or practice of discrimination by Louisiana Crane requiring specific documents to establish employment eligibility. Louisiana Crane responded that USCIS had engaged in “malicious use of process” and the USCIS should be interpleaded as a relevant party. The government filed a motion to dismiss.

    In denying Louisiana Crane’s motion, ALJ Stacy S. Paddack cited a number of sources for the authority to make referrals to the OSC: case law, statutory law, and memorandum of agreement.

    For case law, the ALJ cited In Re Investigation of: Modern Maintenance Co., Inc., 2 OCAHO no. 359, 476, 477 (1991), where OCAHO stated “OSC’s investigation followed upon information received from INS. . . . In my judgment, the INS referral constitutes reasonable cause for investigation.” Second, the ALJ cited Hernandez, et al. v. Farley Candy Co., 5 OCAHO no. 765, 367, 368 n. 1 (1995), where OCAHO stated INS’s investigation of Respondent “for alleged § 1324a violations with regard to the same individuals who are Complainants in this case does not bar OSC from asserting its own cause of action under § 1324b.”

    According to the ALJ, statutory and regulatory law also supported OSC. In United States v. McDonnell Douglas Corp., 3 OCAHO no. 507, 1053, 1061 (1993), an ALJ cited 8 U.S.C. § 1324b(d)(1) as supporting OSC’s “discretion to investigate unfair immigration-related employment practices on its own initiative, without a charging party, and the ability to file a complaint before an ALJ based on that investigation….” The ALJ in Louisiana Crane also stated 8 U.S.C. § 1324b(b)(1) and 28 C.F.R. § 44.300(a)(2) specifically have allowed legacy INS and Department of Homeland Security (DHS) to file charges with OSC “alleging that an unfair immigration-related employment practice has occurred or is occurring....”

    A third source of authority is a 2010 Memorandum of Agreement between the OSC and USCIS which states that USCIS may refer case information related to “allegations of discrimination arising out of employer use of E-Verify” to the OSC. The Memorandum states the following as its legal authority: (1) Section 274B of the Immigration and Nationality Act; (2) Homeland Security Act of 2002; (3) INA § 1324a; and (4) the Privacy Act of 1974. The fourth source of authority, according to the ALJ, is that E-Verify users enter into a Memorandum of Understanding with DHS, stating DHS can use data collected for compliance and enforcement actions.

    Therefore, the OCAHO ALJ held the authority referenced above demonstrates that OSC has authority to investigate and file a complaint “on its own initiative” without an underlying charge, which historically has included referrals from DHS.

    This decision is particularly important because USCIS has increasingly been making referrals to OSC for investigation of discrimination.

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ID:	939 ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow Bruce on social media via Facebook and on Twitter @BuchananVisaLaw .
  3. Terminated Employee Alleges “Creativity” in I-9 Verification

    By Bruce Buchanan, Siskind Susser

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    A federal employment lawsuit filed in Pennsylvania last week has turned up an unusual set of allegations of immigration compliance violations. The Plaintiff, a terminated employee, states in her complaint that she began working for Environmental Stoneworks in 2005 and took on Human Resources duties including the verification of employees’ work eligibility. She alleges that her superiors began pressuring her “intensively” to certify I-9 forms for employees without physically seeing the required documentation; and that an office manager told her to “get creative to get this done” because new employees needed to be on the job site immediately.

    Creativity in the employment verification process, according to the Plaintiff, entailed reviewing copies of eligibility documents on a cell phone and executing I-9 forms outside the presence of employees. Rather than get in touch with her creative side, the Plaintiff states in her complaint that she alerted her superiors it would be illegal to sign I-9 forms without “physically reviewing” eligibility documents in the presence of employees.

    Regardless of the reason for Plaintiff’s termination, she was correct in her belief that signing I-9 forms without physically reviewing employment eligibility documents would be illegal.

    The Office of Chief Administrative Hearing Officer (OCAHO) recently provided some insight on this same issue when it stated:

    “The I-9 form does not state that the certifier examined copies of the employee’s documents, it says the certifier examined the documents presented by the above named employee. It is simply impossible for a [certifier] to determine whether a document reasonably relates to an individual when the [certifier] never saw” the original documents. See United States v. Employer Solutions Staffing Group II, LLC, 11 OCAHO no. 1242 (2015). I covered this decision in a previous blog post.

    The Takeaway

    It is important for a company’s certifier to personally review the originals of the employment eligibility documents. An employer should not email, mail, or fax copies of the documents to another company official to review and certify. This concept is especially important to remember where an employer has multiple facilities and retains the originals at its corporate headquarters.

    More about the Miranda v. Environmental Materials, LLC, 3:15-cv-00568 (M.D. Pa.) case can be found here.

    Updated 03-27-2015 at 12:56 PM by BBuchanan

  4. OSC and Hilton Hotels Settle Immigration Discrimination Case

    By Bruce Buchanan, Siskind Susser

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    The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has reached a settlement with Hilton Worldwide (Hilton) to resolve allegations that Hilton discriminated against a foreign-born worker.

    The settlement comes after an investigation into a complaint that was called-in to the OSC Worker Hotline. OSC’s investigation found reasonable cause to believe that Hilton engaged in citizenship status discrimination - “document abuse”, during the employment eligibility verification process in violation of the Immigration and Nationality Act (INA). Specifically, the department found that a Hilton-owned hotel in Naples, Florida, discriminated against an asylee by improperly rejecting his Social Security card when the hotel reverified his employment authorization.

    The anti-discrimination provision of the INA prohibits employers from rejecting an employee’s work-authorization documents because of the employee’s citizenship, immigration status or national origin. The INA also prohibits employers from specifying documents that employees must present during the employment eligibility verification process, and employers cannot reject documents that reasonably appear to be genuine and relate to the worker.

    Under the settlement agreement, Hilton will pay $550 in civil penalties to the United States; pay $12,600 in back pay to the worker who brought the complaint; revise its employment eligibility verification policies; undergo training on the anti-discrimination provision of the INA, and be subject to monitoring of its employment eligibility verification practices for two years in its owned or managed Florida Hotels.

    This settlement demonstrates that employers, large and small, can benefit from incorporating INA anti-discrimination provisions into a company I-9 Compliance policy, and from conducting immigration compliance training.

    A copy of the Hilton Worldwide settlement agreement can be viewed here.

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Size:  2.9 KB ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow this author on social media via Facebook and on Twitter @BuchananVisaLaw .
  5. ICE Catches Employer Backdating I-9 Forms

    By Bruce Buchanan, Siskind Susser

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    The Office of Chief Administrative Hearing Officer (OCAHO) issued its fifth substantive decision of 2015 finding that the company in United States v. Liberty Packaging, Inc., 11 OCAHO no. 1245 (2015), committed numerous I-9 violations. The proposed penalty by Immigration and Customs Enforcement (ICE) was lowered from $19,354 to $11,700.

    When ICE served a Notice of Inspection (NOI) on Liberty Packaging, it also provided the company with a sample copy of the current I-9 form surreptitiously marked with the letters “ICE”. It was later revealed to OCAHO that the surreptitious marking of that sample form is a tactic used by ICE to detect if employers backdate I-9 forms. In this case, it worked.

    Without having legal counsel, Liberty Packaging submitted 21 I-9 forms to ICE. After reviewing those forms, ICE issued the company a Notice of Intent to Fine (NIF) in March 2013. Liberty Packaging then submitted a “different” set of I-9 forms with an explanation that they were the “correct ones”.

    Of the 21 forms originally submitted in the first set, 17 contained the surreptitious “ICE” mark indicating they were backdated. Thus, ICE set a baseline penalty of $935 per violation and aggravated the penalty by 15% due to the company’s bad faith, the seriousness of the violations and the presence of unauthorized workers.

    It was discovered that a Human Resources manager at Liberty Packaging dated I-9 forms with the correct month and day of hire, but not with the correct year. Some of the forms were backdated between two and 20 years. As a result, there were many instances where the company used a newer version of the I-9 form which was not even in existence at the time of the employee’s hire.

    On the issue of different sets of forms, OCAHO cited well-established case law holding that the I-9 forms to be considered were the first set of forms the company provided in response to the NOI –not the second “different” set of forms the company submitted at a later date. OCAHO found that Liberty Packaging had committed “systematic and deliberate falsification” in Section 2 of the I-9 forms, which “cannot be said to indicate good faith.” It noted that the company’s Human Resources manager had eight years of experience which presumably meant they had “some expertise” in handling I-9 responsibilities.

    Concerning ICE’s proposed penalties, Liberty Packaging asserted that it was a small mom-and-pop business and expected to lose between $250,000 and $300,000 in 2013 (although the company failed to provide any documentation to support this assertion). The company argued that a $19,000 penalty would severely impact its ability to stay in business.

    Furthermore, the company was successful in arguing that ICE failed to prove five employees were unauthorized. ICE merely offered proof that they were listed on the Notice of Suspect Documents which is insufficient to establish unauthorized status.
    OCAHO found the proposed penalty should be adjusted to an amount closer to midrange, and reduced it to $650 per violation – an amount that “does not appear disproportionate to Liberty’s resources.” The penalty was reduced from $19,354 to $11,700.

    Take Away

    The most obvious take away is do not backdate the I-9 forms as it only exacerbates the employer’s liability. Second, submit the correct I-9 forms when responding to an NOI because later filed I-9 forms will not be considered. If this employer had engaged in preventive measures, such as hiring an attorney to conduct an I-9 audit, it could have avoided much of its liability.

    A copy of the decision is available here. Cite as United States v. Liberty Packaging, Inc., 10 OCAHO no. 1245 (2015).
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