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I-9 E-Verify Immigration Compliance


  1. Undocumented Workers Entitled to Backpay for FLSA Violations; by Bruce Buchanan, Siskind Susser

    In Lamonica v. Safe
    Hurricane Shutters, Inc. (11th Cir. Mar. 7, 2013), an employer
    unsuccessfully argued an undocumented worker should not be entitled to backpay under the Fair Labor Standards
    Act (FLSA) and cited Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137
    (2002).    However,
    the Court distinguished Hoffmann and relied upon Patel v. Quality Inn,
    846 F.2d 700 (11th Cir. 1988) (undocumented aliens are "employees" who may
    recover unpaid wages under the FLSA).
    In Hoffman, the
    Supreme Court held the NLRB cannot award backpay to undocumented aliens who are
    terminated for union activity in violation of the National Labor Relations Act
    ("NLRA"). However, the Court did not disturb its prior holding that
    undocumented aliens "plainly come within the broad statutory definition of
    'employee' " contained in the NLRA. Sure-Tan, Inc. v. NLRB, 467 U.S.
    883, 892 (1984). Instead, the Court emphasized that it was merely limiting the
    remedies available to undocumented aliens under the NLRA. In Quality Inn,
    the Court found the statutory definitions of "employee" in the NLRA and FLSA to
    be analogous, and drew upon Sure-Tan's analysis of the NLRA in
    concluding that undocumented aliens are also "employees" under the FLSA.
    The NLRA, which was at issue
    in Hoffman, grants the NLRB broad discretion to devise remedies that
    effectuate the policies of the Act, subject only to limited judicial review." Sure-Tan,
    467 U.S. at 898-99, 104. This limited judicial review includes the authority to
    reject the NLRB's chosen remedy where it "trenches upon a federal statute or
    policy outside the Board's competence to administer." Hoffman was an exercise
    of that judicial authority; the Court rejected the NLRB's remedy on the ground
    that it trenched upon the policies underlying the Immigration Reform and
    Control Act of 1986 ("IRCA").
    In contrast, no
    administrative body or court is vested with discretion to fashion an appropriate
    remedy under the FLSA. Instead, the FLSA unequivocally provides any employer
    who violates its minimum wage or overtime provisions "shall be liable to the
    employee or employees affected in the amount of their unpaid minimum wages, or
    their unpaid overtime compensation, as the case may be, and in an additional
    equal amount as liquidated damages." 29 U.S.C. § 216(b). Unlike the NLRA, there
    is nothing in the FLSA that would allow one to conclude that undocumented
    aliens, although protected by the FLSA, are nevertheless barred from recovering
    unpaid wages thereunder.
    In Hoffman, the Court
    concluded awarding backpay to undocumented aliens under the NLRA would be
    inconsistent with the IRCA, which "'forcefully' made combating the employment
    of illegal aliens central to '[t]he policy of immigration law.' " 535 U.S. at
    147. The Court reasoned "awarding backpay in a case like this not only
    trivializes the immigration laws, it also condones and encourages future
    violations." Id. at 150.
    In contrast, an FLSA plaintiff
    "is not attempting to recover back pay for being unlawfully deprived of a job"
    that he could never have lawfully performed. Quality Inn, 846 F.2d at
    705. "Rather, he simply seeks to recover unpaid minimum wages and overtime for
    work already performed." Id.  In such circumstances, the immigration law
    violation has already occurred. The award of unpaid wages does not itself
    condone that violation or continue it. It merely ensures that the employer does
    not take advantage of the violation by availing himself of the benefit of
    undocumented workers' past labor without paying for it in accordance with
    minimum FLSA standards.
  2. Office of Special Counsel Settles with Staffing Agency; by Bruce E. Buchanan, Siskind Susser, PC

    The Department of Justice, through the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices has reached an agreement with The Agency Staffing of West Dundee, Illinois, resolving claims that the staffing company violated the anti-discrimination provisions of the Immigration and Nationality Act (INA).
    The investigation was initiated based on a referral from the U.S. Citizenship and Immigration Services (USCIS).   The investigation concluded The Agency Staffing applied enhanced employment eligibility procedures to work-authorized non-U.S. citizens that were run through E-Verify.  The company did not utilize these additional procedures when it ran U.S. citizens through E-Verify. 
    Under the settlement agreement, The Agency Staffing will pay $8,400 in civil penalties to the United States, undergo Justice Department training on the anti-discrimination provision of the INA, and be subject to monitoring of its employment eligibility verification practices for a period of three years.  
    This settlement is just another example of the OSC actively pursuing employers for violating the INA. Employers need to remember to utilize the same procedures for citizens and non-citizens.

  3. DOL finds Employee Engaged in Non-Productive Time; thus, owed Little Back Pay; by Bruce E. Buchanan, Siskind Susser

    In Administrator, Wage & Hour Division v. North Shore School for the Arts (NSSA), 2012-LCA-00039, an Admininistrative Law Judge (ALJ) found an H-1B piano teacher was primarily engaged in non-productive time and, thus,  was owed only $2,980 rather than $16,800.
    Natsuko Imai, a Japanese citizen, was educated in the United States receiving her Bachelors of Music from Mannes College of Music and a Masters of Music from DePaul University.  After each degree, she worked a year of OPT. Afterwards, she sought a certificate from Roosevelt University. During these 10 years, Ms. Imai was on a F-1 visa. Despite the prohibition against working outside of campus, she regularly gave paid piano lessons, some of which were through NSSA, and did not claim the income on tax returns.
    After Ms. Imai dropped out of Roosevelt University and lost her F-1 status, she sought a way to remain in the United States.  NSSA agreed to sponsor her for a H-1B visa as a piano teacher. She returned to Japan and re-entered the U.S. as a tourist although she worked at NSSA, contrary to the law. After NSSA's H-1B visa was approved in September 2010, Ms. Imai began employment under the H-1B visa on November 2, 2010, a month after NSSA wanted Ms. Imai to start work.
    The issue in the case was whether Ms. Imai was "ready, able and willing to work.' Ms. Imai's job as a piano teacher did not involve a set schedule; rather, it depended on the number of students she taught. The evidence showed Ms. Imai made little effort to recruit students and engaged in little marketing/outreach work to seek more students, even though that was part of the job description. Instead, she spent about 50 hours a week practicing piano in preparation for competitions. However, Ms. Imai said she was available to give lessons if she had any students desiring a lesson.  Several times Ms. Imai provided private lessons away from NSSA.
    Eventually, on March 28, 2011, NSSA terminated Ms. Imai. Thereafter, she claimed she was due $1600 a week ($40/hour x 40 hours) for 21 weeks even though she only taught piano for 74.5 hours during the 21 weeks or an average of 3.5 hours a week.
    After finding Ms. Imai violated the terms of her F-1 visa and the tax code and was not a credible witness, the ALJ also found Ms. Isai was not ready, able and willing to work; rather, she just wanted to practice for competitions and auditions. As such, Ms. Isai was not entitled to wages except for the 74.5 hours she gave piano lessons. Thus, the ALJ awarded Ms. Imai $2980 ($40/hour x 74.5 hours).
  4. Revised 2-Page Form I-9 is Finally Released; by Bruce Buchanan, Siskind Susser, P.C.

    The USCIS has today released the long-awaited new 2-page Form I-9, which is dated "Rev. 03/08/13."  Go to and then forms for the new Form I-9 with new instructions. 
    Employers should immediately start to use this new I-9 and discontinue using earlier Form I-9s
    with other expiration dates. USCIS is providing a 60-day grace period (which ends on May 7, 2013) before it is mandatory to use the new form.
    IMPORTANT - New Form I-9 does not mean that current employees should fill out a new Form I-9. It only means that you should use the new Form I-9 for new hires or re-hires (which normally does not include employees being recalled from a layoff).
    Here are some important new aspects of the new Form I-9:

    Biggest change - It is 2 pages, which should make it easier to fill out. Page 1 is Section 1 while page 2 is Sections 2 and 3.
    Section 1 adds boxes for the employee to list their email address and telephone number. However, this is optional though the Form I-9 does not state such, only the instructions.
    Section 1 no longer asks for "Maiden name" rather asks for "Other Names Used (if any)".
    Section 1 adds a data field for the employee to list their I-94 Admissions number and
    foreign passport number and country as an alternative to the A Number if the employee is only authorized to work rather a lawful permanent resident or U.S.  citizen. Hopefully this will be helpful but it is also could be very confusing.
    Uses a signature box for an employee to sign in Section 1, rather than the previous confusing signature line.

    According to USCIS, it improves the instructions for filling out the I-9. I agree.
    In Section 2 instructions, explanation of when a receipt is an acceptable document;
    and how the 3 day rule works for completing the I-9 by the employer.
    Section 2 clarifies the use of acceptable documents, "List A OR List B AND List C" though I still assume that some employers will illegally overdocument by filling out information in all lists under the philosophy - more is better.

    Changes title of Section 3 to "Reverification and Rehires" from "Updating and Reverification." This change could lead to confusion on whether name changes need to be updated. The instructions say yes.

    It does not add or delete acceptable documents in Lists A, B or C.

     If you have any questions, let me know.
  5. FTD Receives late Valentine Day gift, not; by Bruce Buchanan, Siskind Susser, P.C.

    The Department of Justice, through the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), reached an agreement with FTD Inc., to resolve allegations that the company retaliated against a man for asserting rights under the anti-discrimination provision of the Immigration and Nationality Act (INA).  
    OSC initiated the investigation after receiving a complaint from a work-authorized immigrant that FTD rescinded the individual's conditional job offer after a background check revealed a purported error in his Social Security account number.   The man informed FTD that he was authorized to work in the United States and provided documents showing his status.   The man also threatened to pursue his legal rights under the INA's anti-discrimination provision.   FTD responded by terminating all communication with the individual.    
    Under the terms of the settlement agreement, FTD agreed to pay $1,800 in back pay to the individual and $3,000 in civil penalties.   FTD also agreed to undergo Justice Department training on the anti-discrimination provision of the INA.  
    This is the fourth settlement that OSC has reached with employers in the first two months of 2013. So beware of potential legal diffiulties with the OSC.
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