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I-9 E-Verify Immigration Compliance

OCAHO Decides Who and What is Protected from Document Abuse

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By Bruce Buchanan, Sebelist Buchanan Law PLLC
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The Office of Chief Administrative Hearing Officer (OCAHO) issued another decision on “document abuse”, which has been renamed “unfair documentary practices”, finding the employer did not commit document abuse against the Charging Party, Doris Rainwater. Rainwater v. Doctor’s Hospice of Georgia, Inc., 12 OCAHO no. 1300 (Apr. 2017).

Facts

Ms. Rainwater was employed as a certified nursing assistant at Doctor’s Hospice for several years. At that time, she was a lawful permanent resident (LPR). In November 2013, Doctor’s Hospice conducted an annual review of its employees’ personnel files to ensure none of its employee documentation, such as certifications, had expired. In this review, the Administrator discovered Ms. Rainwater’s LPR card had expired. Thereafter, Ms. Rainwater was informed she was suspended until she could present a valid LPR card.

Ms. Rainwater contacted the Office of Special Counsel for Immigration-Related Unfair Employment Practice (OSC) (now renamed Immigrant and Employee Rights Section (IER) of the Department of Justice), who informed her that Doctor’s Hospice’s action was discriminatory. OSC called Doctor’s Hospice and explained even if a LPR card expires, the individual’s LPR status has not ended. During the suspension, Ms. Rainwater told her supervisor, Ms. Charleston, that she had called the Department of Justice. Ms. Charleston reiterated she could not work with an expired LPR card. (It’s unclear whether this conversation occurred before or after OSC’s call to Doctor’s Hospice). Doctor’s Hospice’s Director of Nursing said she received a phone call from the Department of Justice, who said LPR cards never expire. Several days later, Ms. Rainwater was reinstated, but without back pay for the two weeks off.

When Ms. Rainwater returned to work, she said most of the managers did not speak to her. One manager, Ms. West, allegedly stated the facility had the “best lawyer” and “nobody beat or play with my lawyers.” She also allegedly said “you should have talked to me about his prior to going to the Department of Justice to complain about these things.”

On January 8, during an ice storm, a pipe burst at this facility causing a shutdown and the layoff of all employees. On February 27, the facility reopened but it was not fully occupied with patients; thus, two employees were not rehired - Ms. Rainwater and one other employee. Doctor’s Hospice asserted Ms. Rainwater was one of the two employees not rehired because of her poor work record and performance. Thereafter, Ms. Rainwater filed a charge with OSC alleging her failure to be rehired was retaliation and the original suspension was also unlawful.

Suspension Claim

OCAHO found Ms. Rainwater’s suspension claim failed because the statute only “prohibits an employer from discriminating with respect to hiring, recruitment, referral or discharge.” The statute does not cover certain employment actions, such as suspension, compensation, or shift assignments.

However, Doctor’s Hospice’s actions in requesting an unexpired LPR card from Ms. Rainwater was determined to be an act of document abuse under 8 U.S.C. §1324b(a)(6). However, Ms. Rainwater is not a protected individual under that section because she was not a recent permanent resident. Ms. Rainwater had been a LPR for almost 10 years. To be covered, individuals must have not held LPR status for no longer than six months beyond becoming eligible to naturalize. Ms. Rainwater became eligible to naturalize approximately five years before the request for an unexpired LPR card.

Failure to be Rehired Claim

Concerning the failure to rehire Ms. Rainwater to work when the facility reopened, OCAHO found Ms. Rainwater’s evidence did not support her retaliation claim. Initially, OCAHO noted that even though she was not considered a protected individual for the document abuse claim, OCAHO retained jurisdiction over her retaliation claim. Specifically, Ms. Rainwater engaged in protected conduct when she contacted OSC about her suspension due to an expired LPR card. Furthermore, Doctor’s Hospice knew of the contact through Ms. Rainwater telling Doctor’s Hospice and a telephone call from OSC explaining that LPR cards do not expire.

OCAHO concluded Ms. Rainwater failed to establish a causal link between her protected conduct and the failure to be rehired. Although the time period between the telephone call to OSC and the termination was less than three months, OCAHO found intervening events – the ice storm, closure of the facility, and subsequent reopening of the facility with less than full capacity - broke the claim of causality in the retaliation claim. OCAHO said these events caused the end of Ms. Rainwater’s employment, not retaliation. Furthermore, the fact that Doctor’s Hospice returned Ms. Rainwater to work in December after the phone call to OSC undercut her assertion of a causal link between contacting OSC and her failure to be rehired. Finally, OCAHO found Doctor’s Hospice comments about Ms. Rainwater’s contact with OSC were not sufficient to establish the causal link. Thus, OCAHO dismissed Ms. Rainwater’s retaliation claim.

This decision is a firm reminder of who is covered and what is covered by Section 1324b cases. Often, employers are so focused on complying with the I-9 requirements, they inadvertently commit citizenship status discrimination under Section 1324b. One idea to combat this problem is to have an immigration compliance attorney conduct a training session on immigration compliance.

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