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I-9 E-Verify Immigration Compliance


  1. OCAHO Dismisses Employee's Citizenship Discrimination and Retaliation; Bruce Buchanan

    Jose Pablo Martinez, a U.S. citizen, filed a Complaint under the Immigration Reform and Control Act alleging Superior Linen (Superior) fired him because of his citizenship status and national origin and in retaliation for complaints he made about the company preferring unauthorized workers. Martinez's allegations of discrimination on the basis of national origin were dismissed*because IRCA's prohibition of national origin discrimination does not apply in cases where the employer has more than 15 employees; rather, such an allegation must be brought under Title VII.**Superior has more than*15 employees.Superior stated Martinez was terminated because of his poor job performance, for advising fellow workers to slow down production to gain more work hours, and*for refusing to clock in and out for lunch. Martinez states he was terminated because of his citizenship status and for his reporting violations of*IRCA*and OSHA rules.*Martinez asserts four undocumented workers were kept after his termination. Martinez denied Superior's allegations.**OCAHO found two of the four employees cited by Martinez were not similarly situated.* As for the other two employees, there was no indication that either engaged in conduct of comparable seriousness to Martinez's own conduct. In order to establish an inference of discrimination based on disparate treatment of similarly situated individuals, the employee must show that the potential comparators are similarly situated in all material respects.Concerning*his retaliation allegation, OCAHO assumed Martinez met his initial burden*to prove a prima facie, which OCAHO descrided as "so minimal-the degree of proof*.... does not even need to rise to the level of a preponderance of the evidence."*However, Superior then met its burden of production by proffering two reasons for his discharge: poor performance and failure to follow company rules, which shifted the burden of production back to Martinez to demonstrate a factual issue as to legitimacy of Superior's explanation of his termination.OCAHO found Martinez provided no evidence that would permit a reasonable factfinder to believe that the reasons Superior Linen gave for firing him were false, or the true reason was discrimination on the basis of his U.S. citizenship status or retaliation for protected*conduct.* Therefore, OCAHO granted Superior's Motion for Summary Judgment.*This case is one of the rare OCAHO decisions which does not involve ICE's*allegations that a*company violated IRCA by hiring and employing undocumented workers or committing substantive violations in the preparation of I-9 forms.* Instead, it began at the Office of Special Counsel for Unfair Immigration-Related Employment Practices (OSC).***

    Updated 09-10-2013 at 08:12 AM by BBuchanan

  2. Office of Special Counsel Settles Anti-Discrimination Claim; by Bruce Buchanan, Siskind Susser

    The Justice Department, through the Office of Special Counsel (OSC), reached an agreement with ISS Facility Services Company of San Antonio, Texas resolving allegations that the company violated the anti-discrimination provision of the Immigration and Nationality Act (INA).  ISS employs approximately 15,000 employees in the United States.
    The investigation was initiated based on a referral from the U.S. Citizenship and Immigration Services (USCIS).  The investigation focused on whether the ISS offices in Dallas and Houston were requiring non-citizens to present specific U.S. Department of Homeland Security-issued documents to establish their identity and work-authority while not making similar requests of U.S. citizens.  This is a violation of the INA's anti-discrimination provision.
     According to the settlement agreement, ISS will ensure that all its offices comply with the company's existing employment eligibility verification policies and procedures and provide training of its human resources personnel on the INA's anti-discrimination provision.  ISS also agreed to pay $49,800 to the United States and to identify and compensate any individuals who may have suffered economic injuries as a result of its practices.  Under the agreement, ISS' employment eligibility verification practices will be subject to monitoring by the OSC for a period of two years.
    After a couple of months of inaction, the OSC is back to settling discrimination claims and the settlement dollars keep getting larger.
  3. Texas Company and its Manager Guilty of Harboring and Transporting Undocumented Workers; by Bruce Buchanan, Siskind Susser

    GPX/GXP USA (GPX), a  seismic surveying company based in Sealy, Texas, recently pleaded guilty to harboring and  transporting illegal aliens in U.S. District Court, Middle District of Pennsylvania.  GPX has  agreed to forfeit $250,000 cash and pay a $25,000 fine.
    The field operations supervisor also pled guilty to a misdemeanor charge of aiding the  improper entry of undocumented workers into the U.S. He faces six months in prison and a  $5,000 fine.
    The investigation by Immigration & Customs Enforcement's Homeland Security Investigations  (HSI), with assistance  from the FBI and Williamsport Police, revealed that in May 2011,  GPX and its manager hired 19 undocumented workers to work on a seismic surveying project in  Lycoming County, Pennsylvania without verifying the immigration status of the workers or preparing the required  Form I-9 concerning the workers' authorization to work in the U.S.
    Thereafter, GPX falsely executed a contractor  compliance agreement certifying that all individuals were authorized to work  legally in the U.S.
  4. Immigration Compliance Provisions in Immigration Reform Bill; by Bruce Buchanan, Siskind Susser

    There are a number of immigration compliance provisions for employers in the proposed Comprehensive Immigration Reform bill, called "Border Security, Economic Opportunity and Immigration Modernization Act" (the Act).
    A major component in the Act for employers is that all employers would be required to utilize E-Verify. Immediately, federal agencies and federal contractors would be required to utilize E-Verify. After one year, the Department of Homeland Security (DHS) may require "employers responsible for protecting, securing, operating, part of the critical infrastructure" to use E-Verify. Applicable employers would be required to use E-Verify according to the following, after passage of the Act and publication of applicable regulations: (a) 2 years - employers with 5000+ employees; (b) 3 years - employers with more than 500 workers; (c) 4 years - agricultural employers and all other employers; and (d) 5 years - Indian tribes. 
    The amended version of the Act makes it clear that if E-Verify is currently required in one's state(s) where it conducts business, an employer must continue to comply with the state law even if the federal provisions for E-Verify have not gone in effect.
    Another important aspect of this legislation for employers is that if an employee received  "registered provisional immigration (RPI) status", which would provide for lawful employment status, an employer would not be considered to have previously employed an undocumented worker in violation of IRCA. 
    As the bill makes it through the House and Senate, you can probably expect some of these provisions to be amended.
  5. OSC Settles Immigration-Related Discrimination Claim Against Property Management Company; by Bruce Buchanan, Siskind Susser

    The Office of Special for Immigration-Related Unfair Employment Practices (OSC), a part of the Department of Justice reached an agreement with Milestone Management Company, a residential property management firm headquartered in Dallas, resolving claims that the staffing company violated the anti-discrimination provision of the Immigration and Nationality Act (INA).
    A lawful permanent resident alleged that after working for Milestone for three years, the company improperly demanded he produce an unexpired lawful permanent resident card, despite the fact that  he had presented proper work authorization documentation at the time of hire.   The company discharged the worker when he was unable to present the document.   The investigation revealed that Milestone had also improperly reverified the documentation of other lawful permanent residents when their documentation expired and it did not reverify expired documentation of U.S. citizens. The anti-discrimination provision generally prohibits treating employees differently in the employment eligibility verification and reverification processes based on citizenship or national origin unless required by law.
    In resolution of the matter, Milestone immediately reinstated the charging party and provided full backpay for his six weeks of lost wages.  Under the terms of the agreement, Milestone agreed to pay $20,000 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.    The case settled prior to the Department of Justice  filing a complaint in this matter.
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