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I-9 E-Verify Immigration Compliance

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  1. OSC Settles Document Abuse Case Against Janitorial Company; by Bruce Buchanan

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    The Justice Department, through the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, has reached a settlement with Master Klean Janitorial of Denver, Colorado. The settlement resolves claims that the company engaged in discriminatory documentary requests based on citizenship status, in violation of the Immigration and Nationality Act (INA).

    An investigation found Master Klean Janitorial subjected work-authorized non-U.S. citizen new hires to unlawful demands for specific documentation issued by the U.S. Department of Homeland Security in order to verify their employment eligibility, while U.S. citizens were allowed to present their choice of documentation. The INA’s anti-discrimination provision 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.

    Under the settlement agreement, Master Klean Janitorial will pay $75,000 in civil penalties to the United States, undergo training on the anti-discrimination provision of the INA, revise its employment eligibility verification policies and be subject to monitoring of its employment eligibility verification practices for one year.

    The investigation into Master Klean Janitorial is an example of information sharing between government agencies, and follows other investigations that have come from referrals by U.S. Citizenship and Immigration Services (USCIS). USCIS referrals are based on alleged abuses or discrepancies within the E-Verify system.

    A copy of the settlement agreement is available here.

    Updated 05-23-2014 at 11:02 AM by BBuchanan

  2. ICE Inspection May Result in Terminations at Wash. Company; by Bruce Buchanan

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    U.S. Immigration and Customs Enforcement (ICE) recently inspected the I-9 forms of employees at Crunch Pak, an apple packaging company Cashmere, Washington with about 900 employees. ICE notified the company that hundreds of its workers have suspect documents and is demanding Crunch Pak produce documents showing its workers are legally authorized to work in the United States.

    In response to ICE’s findings, Crunch Pak spokesperson Amy Philpott stated, “What the company wants is for every employee to have the chance to correct their information or amend their paperwork.” Crunch Pak has since notified its employees to produce valid documents or face termination on May 19, 2014.

    The inspection of the Crunch Pak began in August 2013 when ICE served the company with a Notice of Inspection (NOI) requiring it to produce the I-9 forms of current and former employees along with a number of other payroll-related documents. In 2013, there were over 3,100 NOIs issued to employers throughout the United States. This is an increase of over 600% since 2008.

    As the number of NOIs has increased, so have the penalties paid by companies. In 2012, companies paid over $12.4 million in penalties for I-9 violations. In addition to fines, some company owners and managers have been criminally charged for knowingly hiring undocumented workers and/or harboring undocumented workers.
  3. OSC opines on Employer’s Obligation to Hire F-1 OPT

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    On April 30, 2014, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a Technical Assistance letter in response to questions posed by fellow AILA member Angelo Paparelli. It found in an advisory opinion that an employer would not discriminate against an applicant due to citizenship status if it failed to hire this particular applicant, who had F-1 optional practical training (OPT) status. However, the OSC stated an employer could be susceptible to a discrimination claim based upon national origin status if that was the real reason for not hiring the applicant.

    The situation involved an employment applicant on F-1 OPT status whose employment authorization would expire "three months after application for employment" and the applicant "has no ability to extend employment authorization under the F-1 OPT regulations because his or her studies are not in a STEM field and the employer is not enrolled in E-Verify; moreover, he or she is not eligible for any other available work authorization status."

    Question #1: “Could a company lawfully decline to extend an offer of employment to a candidate solely based on the fact that he/she will only have work authorization for three months without engaging in citizenship status or national origin discrimination?”

    Answer: OSC stated the categories of individuals protected from citizenship status discrimination are limited to U.S. citizens, lawful permanent residents (LPRs) who are not yet eligible to apply for naturalization or who have applied within six months of eligibility, asylees, and refugees. Thus, F-1 visa holders are not protected from citizenship status discrimination. Therefore, an “employer that asks whether an applicant would require sponsorship now or in the future is unlikely to implicate the anti-discrimination provision's prohibition against citizenship status discrimination.”

    However, this Technical Assistance letter did cite to a 2013 Technical Assistance letter, which stated document abuse may occur when an employer rejects an employee's Form I-9 document(s) based on inquires about the impending expiration of an individual's employment authorization document, or actually rejects a document based on a future expiration date. This determination would be regardless of whether the individual is a LPR, H-1B visa holder or in other lawful status. But the issue of document abuse was not raised as a question in the 2014 request for a Technical Assistance letter.

    Question #2: “If the company may lawfully decline such employment, may it communicate to the applicant this ground as the basis for their decision?”

    Answer: OSC stated that “communicating to an unsuccessful applicant that the employer's unwillingness to sponsor the applicant was the basis for the non-hire decision is not likely to lead to a determination by OSC that an employer has committed unlawful citizenship status discrimination.” OSC cautioned that “companies should not make assumptions based on an individual's current employment authorization status because they may not know whether an individual is in the process of transitioning to a different immigration status that would extend or continue the individual's ability to work in the United States.”

    National Origin Discrimination

    Even though the company may not commit “citizenship status discrimination” in its failure to hire, there is still the issue of “national origin discrimination”. All work-authorized individuals are protected from national origin discrimination under the anti-discrimination provision. Accordingly, the OSC stated an individual who believes that he or she was not hired based on national origin, based on country of origin, accent or appearance, may allege discrimination on this basis. OSC has jurisdiction over national origin claims involving entities with between four and 14 employees, while the Equal Employment Opportunity Commission (EEOC) has jurisdiction over claims involving employers with 15 or more employees.

    Conclusion

    Although Technical Assistance letters do not carry the weight of law, they give valuable insight into OSC’s thinking. This is the second Technical Assistance letter issued by the OSC in 2014. I wrote about the first Technical Assistance letter of 2014 in an earlier post.

    Updated 05-09-2014 at 01:16 PM by BBuchanan

  4. OSC Settles Immigration Discrimination Claim for $43,000; by Bruce Buchanan, Siskind

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    The Justice Department has reached a $43,000 settlement with the Supermercado El Rancho chain of supermarkets operated by Mexico Foods LLC, d/b/a “El Rancho” Corp. The settlement resolves claims that the company engaged in discrimination during the employment eligibility verification process in violation of the Immigration and Nationality Act (INA).

    An investigation by the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) revealed that El Rancho required lawful permanent residents (sometimes referred to as “LPRs” or green card holders) to present a new employment eligibility document after being hired when their green cards expired, in violation of the law. LPRs have permanent work authorization in the United States, even after their green cards expire.

    The investigation also revealed El Rancho routinely requested a specific work authorization document from LPRs during the initial employment eligibility verification process even though, under the law, employees are allowed to choose what documents to present. OSC found El Rancho’s discriminatory practices were based on employees’ citizenship status.

    Under the settlement agreement, El Rancho must pay $43,000 in civil penalties, set-up a back pay fund to compensate individuals who lost work as a result of the improper reverification practices, undergo training on the anti-discrimination provision of the INA and submit to monitoring for 18 months.

    This case follows others that were initiated based on a referral from the USCIS. As I have noted in prior posts, such referrals are becoming more common in OSC cases.

    A copy of the Settlement Agreement is available here.
  5. OCAHO Rejects More Arguments from GA Company; by Bruce Buchanan, Siskind Susser

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    M&D Masonry of Americus, GA is back again, appealing last month’s Final Order from Administrative Law Judge (ALJ) Ellen K. Thomas who assessed the company $228,300 in civil money penalties, and found it liable for 338 violations related to I-9 Form documentation. I covered that decision in a previous article (here), and the case is now cited as United States v. M&D Masonry, Inc., 10 OCAHO no. 1211.

    The company filed a timely request for administrative review and the case was reviewed de novo this month by Chief Administrative Hearing Officer Robin M. Stutman of the Office of the Chief Administrative Hearing Officer (OCAHO). After M&D raised a number of issues on appeal, OCAHO still determined that M&D received “generous” treatment from ICE given the facts in this case, and it received a significant reduction in penalties from the ALJ.

    Highlights of OCAHO’s decision
    - M&D is not a large business deserving of an aggravated penalty, nor is it a small business deserving a mitigated penalty. However, the ALJ still mitigated (lowered) the penalties in M&D’s favor by more than $200 per violation. ALJ decision upheld.
    - M&D’s pre-signing of more than 100 I-9 forms was wrong, and ALJ’s analogy to Broussard-Wadkins (a RICO case from federal district court) regarding false attestations was legally and factually right. ICE was unduly generous in treating good faith as a favorable consideration in this case. ALJ decision upheld.
    - M&D’s challenges to ICE’s “penalty matrix” used for calculating penalties are not a basis for modifying the ALJ decision when the ALJ has wide discretion in determining a penalty amount. The ALJ’s $104,513.25 reduction of ICE’s originally proposed penalty is upheld.

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    Takeaway
    No business can afford to absorb a six-figure penalty from the U.S. Government. This case is a great example why any employer, large or small, would be wise to have an I-9 Compliance Policy in place and self-audit periodically under the supervision of an immigration compliance attorney.

    A copy of the decision is available here. Cite as United States v. M & D Masonry, Inc., 10 OCAHO no. 1215 (2014).
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