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I-9 E-Verify Immigration Compliance

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  1. OSC issues Letter on Application of Employer's Dishonesty Policy and Fraudulent Documents; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel for Immigration-Related Employment Practices (OSC) issued a Technical Assistance letter on November 1, 2012 to Information Solutions of Lowell, Arkansas concerning an employer's dishonesty policy and acceptance of fraudulent documents from employees in the I-9 process.
    OSC initially reminded employers that if it "knows a document to be fraudulent but nevertheless accepts it", it may have violated the law. It also discussed whether a "company policy that deems individuals that presented false documents ineligible for rehire" is lawful. The OSC stated "consistent application of a dishonesty policy would not constitute a per se violation of the antidiscrimination provision."
    However, the OSC explained "if an employer rejects a presently work-authorized individual from employment based on the individual's prior undocumented status, that employee might choose to file a charge under the anti-discrimination provision." OSC stated its investigation would focus on whether an employer's "dishonesty policy" is consistently applied to employees who make false representations on their applications for employment or other forms without regard to citizenship status or perceived national origin, and whether the employer's claimed reason for termination is in fact a pretext for citizenship status discrimination.
    This is a timely reminder on the importance of having consistently-applied policies concerning dishonesty. This is especially true as many individuals receive work authorization cards through DACA and may be presenting their card to their present employer.  
     
  2. McDonald's Franchisee Admits Knowingly Employing Undocumented Worker as Manager; by Bruce Buchanan, Siskind Susser

    A McDonald's restaurant franchisee in Wichita, Kansas agreed to plead guilty to one felony count of knowingly accepting a fraudulent identification document offered as proof that an employee was eligible to work.  As part of the plea agreement, McCalla Corporation agreed to pay a $300,000 fine and an additional $100,000 forfeiture judgment.
    McCalla admitted, in March 2011, the company's director of operations became aware that one of its store managers was using a false Social Security number. The director told the McDonald's store manager she needed to provide him new documents to confirm her eligibility to work. Two days later, the store manager presented a resident alien identification card. The director knew the new card was not genuine. Nevertheless, he updated her paperwork and McCalla took no further action. She worked as a store manager for about 3 and ˝ years.
    This is the second recent Kansas case involving the employment of undocumented workers. The other one involved two hotels. Just another reminder that companies need to be vigilant in their immigration compliance or they will be facing the consequences. Industries, such as restaurants, hotels, construction and defense, are especially on ICE's radar.
  3. OSC Settles Discrimination Claim against Advantage Home Care; by Bruce Buchanan, Siskind Susser

    The Office of Special Counsel of the Department of Justice has reached an agreement with Advantage Home Care LLC, a home health care provider based in Hackensack, N.J., resolving
    claims that the company violated the Immigration and Nationality Act (INA), when it required newly-hired lawful permanent residents to provide more or different documents during the Form I-9 employment eligibility verification process.
    The investigation stemmed from a charge filed by an individual after Advantage Home Care had a
    criminal background check run that erroneously concluded the individual's Social Security number was invalid.  The individual visited the Social Security Administration, which told him that his number was valid, but Advantage Home Care still refused to employ him based on the background check. The subsequent investigation revealed Advantage Home Care imposed greater requirements to verify employment eligibility for lawful permanent residents than U.S. citizen employees.  
    Under the settlement agreement, Advantage Home Care will pay $1,633 in back pay to the individual charging party and $46,575 in civil penalties to the United States.  The company will also work with the OSC to identify and pay back pay to additional potential victims that suffered economic harm as a result of the practice. 
  4. New Jersey company fined $625,000 by ICE; by Bruce Buchanan, Siskind Susser

    Infinite Visions, LLC, a New Jersey-based clothing manufacturer, was recently fined $625,000 for I-9 violations discovered during an audit and inspection conducted by Immigration and Customs Enforcement - Homeland Security Investigations (ICE-HSI) after receiving an anonymous tip about allegations that the company engaged in unlawful hiring practices.  The government's audit revealed numerous violations of the INA  and serious deficiencies in the company's employment records.
     
  5. OCAHO Holds Partner is not Employee; thus no I-9 is Required; by Bruce Buchanan, Siskind Susser

    Office of Chief Administrative Hearing Officer (OCHAO) held, in United States v. Santiago's Repacking, Inc., 10 OCHAHO no. 1153 (2012), a partner, who has meaningful control and management of the partnership, is not required to complete an I-9 form for the partnership. However, his partnership's failure to have any I-9s of their 24 current employees or 30 former employees for the past six months is a clear violation of Immigration Reform and Control Act of 1986 (IRCA). Thus, Santiago's Repacking was fined for the failure to have the I-9 forms of 54 employees. However, the partnership successfully had the penalties reduced by about 60%.
    Santiago's Repackaging is located in Nogales, Arizona. It was served with a Notice of Inspection on July 1, 2009 requesting their I-9 forms and payroll records for current employees, and those employees terminated since January 1, 2009. Santiago was only able to produce one I-9 form, a partially completed one for one of its three partners.
    Santiago asserted it reviewed and maintained the applicable documentation for all newly- hired employees but was unaware of the need to complete I-9 forms. Of course, retention of applicable
    documentation without completion of the I-9s is a clear violation of IRCA.
    Santiago argued it was not required to complete an I-9 for a partner because he is not an employee of the company. After a thorough analysis of the applicable case law, including Clackamas Gastroenterology Associates v. Wells, 538 U.S. 440 (2003), Simpson v. Ernest & Young, 100 F.3d 436 (6th Cir. 1996), and Solon v. Kaplan, 398 F. 3d 629 (7th Cir. 2005), OCAHO held: "Unlike the
    partners found to qualify as employees in Simpson, Santiago's Repacking is not a large national firm in which any "partner" lacked meaningful control or voting rights. Santiago Moreno is one of only three original partners in Santiago's Repacking . . . has a one-third interest and shares equally in profits and losses as well as in the management of the partnership business. The government made no suggestion that Moreno is subject to supervision, discipline, or performance evaluations, or that apart from the appearance of his name on the unemployment tax and wage reports, there are any other indicia of employee status. The preponderance of the evidence accordingly indicates that Moreno's status is that of a working partner, not an employee."
    As for the fines, ICE set a baseline at $935 per violation based upon the fact it violated IRCA on 100% of the employees reviewed. It mitigated the fine by 5% because it was a small business. However, it increased the baseline by 5% each for the seriousness of the violations and the fact that over 1/2 of the employees reviewed were unauthorized. Overall, ICE sought a civil fine of $52, 500.
    OCAHO, as it is apt to do, saw fit to lower the fines. It stated: "This is a small company with ordinary business income in 2010 of only $58,457; its payroll for that entire year was $226,531. The penalties as proposed are thus quite close to the total of the company's business income for 2010. In the exercise of discretion the penalties will be adjusted to $400.00 for each of the violations in Count I and $350.00 for each of the violations in Count II for a total of $20,100."
    In this case, it certainly was worthwhile for Santiago's Repackaging to challenge ICE's allegations. By doing so, it had one of the three counts dismissed while reducing the penalty by about 60% for the other two counts.   
    Even if an employer has not had legal representation during an ICE audit (which is not a wise decision), it should certainly obtain counsel before agreeing to pay any fines. Counsel can
    evaluate the matter and determine the best course of action.
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