OSC Settles Immigration Claim against Omnibus for $245,800
By Bruce Buchanan, Siskind Susser
The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), within the Justice Department, has reached a settlement with Autobuses Ejecutivos LLC, a bus company doing business as Omnibus Express based in Houston, Texas. The settlement resolves a lawsuit filed in August 2013 by the OSC under the Immigration and Nationality Actís (INA) anti-discrimination provision.
The lawsuit alleged that Omnibus Express favored the employment of temporary foreign nationals under the H-2B visa program over U.S. citizens and permanent residents; failed to consider applications for bus driver positions filed by individuals who were not H-2B workers before hiring temporary foreign nationals; actively discouraged non-H-2B workers from pursuing employment as bus drivers by misrepresenting the availability of positions and by not contacting those individuals about the status of their applications; and made material misrepresentations to the Department of Labor and U.S. Citizenship and Immigration Services (USCIS) in connection with applications seeking permission to hire temporary foreign nationals.
As part of the OSC settlement agreement, Omnibus will:
-Pay $37,800.00 in civil penalties to the United States;
-Establish a back pay fund of $208,000 to compensate potential economic victims;
-Revise its employment eligibility re-verification policies; and
-Be subject to monitoring of its employment eligibility verification practices for the next two (2) years.
This was a particularly interesting case because of the numerous discovery requests made by the OSC, the objections made by Omnibus Express to those requests, and the ruling by the Office of Chief Administrative Hearing Officer (OCAHO) in favor of the OSCís motion to compel discovery.
However, in granting the OSC's motion, OCAHO rejected the OSC's attempt to cite to an unpublished OCAHO interlocutory order as authority for its requests since "unpublished decisions lack precedential value and are not intended to be relied upon or cited in other cases". Further, OCAHO held that OSC's reliance on the unpublished order was "misplaced", not only because the order was unpublished, but also because the reference to it "apparently ignores parenthetical notes in the order itself explaining that the determination of an appropriate temporal scope for discovery must be made based on the context of each case individually". See United States v. Autobuses Ejecutivos, LLC d/b/a Omnibus Express, 11 OCAHO no. 1220 (2014). A copy of that decision is available here.
A copy of the Omnibus Express settlement agreement can be viewed here.
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 .