I-9 E-Verify Immigration Compliance

DOJ Settles Document Abuse Claim against Ohio School

The Department of Justice reached an agreement with Imagine Schools Inc. of Groveport, Ohio resolving allegations that the company discriminated against an employee in violation of the Immigration and Nationality Act (INA) by firing him during the reverification of his employment eligibility.
A complaint alleged Imagine Schools unlawfully terminated a lawful permanent resident after he failed to produce an unexpired lawful permanent resident card during reverification of his employment eligibility status. The employee had originally presented a valid lawful permanent resident card when he was hired, and alleged he was requested to reverify his work authorization, along with a request for a specific document.
Under the settlement agreement, Imagine Schools agreed to pay $20,169 in backpay plus interest to the discharged employee and $600 in civil penalties to the United States. Imagine Schools also agreed to comply with the law, train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process, and be subject to reporting and compliance monitory requirements for 18 months.
Under the INA, permanent resident cards and U.S. passports are not subject to reverification in Section 3 of the I-9 form even if they expire after the employee is hired. Furthermore, the INA’s anti-discrimination provision prohibits discrimination based on citizenship or national origin in the employment eligibility verification process or reverification process.
In the past six months, DOJ, through the Office of Special Counsel, has settled approximately eight cases against employers for allegedly discriminating against employees in violation of the INA. The backpay and civil penalties due on the eight cases is over $350,000 with the University of California at San Diego Medical Center and Onward Healthcare, Inc. paying $115,000 and $100,000, respectively.
Employers must remember there are two separate agencies involved with investigating and prosecuting immigration compliance violations, Immigration and Customs Enforcement (ICE) and the Office of Special Counsel of the Department of Justice. Thus, employers must be vigilant in complying with immigration laws even though many times it may seem the two agencies are at odds with each other with employers caught in the middle.

NLRB Discusses What to do when Labor Law & Immigration Law Intersect

As an immigration attorney, who formerly worked as an attorney for the National Labor Relations Board for 20 years, I will attempt to explain a recently-issued memorandum from the NLRB concerning how to handle compliance cases with issues concerning whether the terminated employee (also referred to as a discriminatee) was authorized to work under the Immigration Reform and Control Act (IRCA).
In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court held the IRCA bars the Board from awarding backpay to any individual who was not legally authorized to work during the backpay period. Furthermore, an undocumented worker cannot be ordered reinstated.
On May 4, 2012, the NLRB’s Associate General Counsel (AGC) issued a memorandum to all Regional Directors of the NLRB providing guidance after the Board’s decision in Flaum Appetizing Corp., 357 NLRB No. 162 (Dec. 30, 2011), a case involving compliance with a prior Board Order. It should be noted the National Labor Relations Act (NLRA) is substantially different than Title VII, the ADEA, and other employment statutes, in that it bifurcates the finding of a violation of the law from the compliance/remedy stage of the case (oftentimes involving reinstatement with backpay but never any damages).
In Flaum Appetizing, Respondent alleged none of the discriminatees (former employees who were unlawfully discharged) were entitled to work in the U.S. under IRCA; thus, none were entitled to backpay under Hoffman Plastics. However, Respondent provided no specificity with regard to any of the discriminatees except to state a number of the alleged discriminatees testified their documentation was false. However, only four of the 17 discriminatees testified at the underlying unfair labor practice (ULP) hearing that their green cards, which were presented to the employer at the time of their hire were, not their own. Seven discriminatees verified their green cards while six discriminatees did not even testify at the ULP hearing.
Concurrent with the compliance hearing, the employer served identical subpoenas duces tecum demanding the employees’ work authorization documents, identity documents under IRCA, as well as such documents as marriage licenses, voter registration cards and educational records. The Board granted Counsel for the General Counsel’s (CGC) pre-trial motion to strike Respondent’s affirmative defenses as to the 11 employees who did not testify against their interests. The Board concluded “permitting such re-verification [of work authorization status] … without sufficient factual basis … would invite a form of abuse expressly prohibited by IRCA, and would contravene ordinary rules of procedure and undermine the policies of the Act.” Slip op. at 7. It also contravenes the policy underlying the NLRA and chills the exercise of statutory rights. Id. at 6-7. However, the Board directed Respondent to provide an amended Bill of Particulars to provide adequate elaboration of its claims as to the other four discriminatees, without which the Administrative Law Judge (ALJ) would strike the defenses upon a motion by the CGC.
Thus, the Flaum decision means the Board will not allow a respondent to use Board processes to launch a “fishing expedition” aimed at Hispanic-sounding names in hopes of discovering unanticipated evidence that might mitigate its backpay liability under Hoffman Plastics. (This is especially true since the NLRA does not allow discovery, only issuance of subpoenas for documents producible at trial.)
In all compliance cases in which respondent fails to state in its Answer sufficient supporting facts for its work-authorization defense to a discriminatee’s backpay eligibility, the AGC advised the Region, through the CGC, should file a pre-trial motion for a Bill of Particulars eliciting respondent’s position and specific evidence in support of its assertion that the employee is ineligible to work. Furthermore, upon review of the Bill of Particulars, if respondent’s pleadings continue to be deficient, the Region should file a motion to strike the affirmative defenses. If subpoenas duces tecum have been served on discriminatees in a pending compliance proceeding in which such an affirmative defense has been pled, the AGC advised Regions should move to revoke the subpoenas conditionally, subject to a ruling on the motion for a Bill of Particulars and a review of the bill produced.
The memorandum also covered several other immigration status issues, which were not discussed in Flaum. They are:
(1) Since an employee’s work authorization status is irrelevant to the underlying question of the employer's liability under the NLRA, (see Tuv Taam Corp., 340 NLRB 756, 760 (2003)), CGC should object to a respondent’s attempt to litigate a discriminatee’s or a witness’s immigration status at the liability phase, and should take a Special Appeal to the Board on any adverse ALJ ruling;
(2) Regions may consider whether a charged party (usually an employer) commits an independent violation of Section 8(a)(1) of the NLRA where, without evidence of an employee’s “disabling status”, it issues subpoenas for the employee's work authorization documents for purposes of harassing the employee; and
(3) A reinstatement offer is not valid if it is conditioned on re-verification of employment status.
This is the second recent occasion where labor law and immigration law have intersected. That’s why it is wise to obtain an attorney(s) well-versed in the areas of immigration and labor law when the two areas intersect.

Chipotle's Troubles Expand

Chipotle Mexican Grill continues to face government investigations. The latest agency to pounce on Chipotle is the SEC - Securities and Exchange Commission, not the Southeastern Conference.
On May 17, the SEC issued a subpoena to Chipotle requesting "information regarding [Chipotle's] compliance with employee work authorization requirements, related public statements and disclosures, and related information." James Brosnahan of Morrison & Foerster, surmised the SEC is "looking for a false statement, omision, or scheme to deceive, especially affecting income." The SEC has not informed Chipotle as to the focus of the investigation, according to a company spokesman.
As expected, it depends on who you talk to as to whether the SEC investigation is unusual. Chiptotle's attorney, Robert Luskin of Patton Boggs, says, "It is not unusual for the SEC to join an investigation under these circumstances to determine whether the company has been forthcoming in its public statements." On the other hand, others, who are not involved in the case, disagree. Michael Wildes, a former federal prosecutor and an immigration attorney, states it is "not common at all" for the SEC to intervene in an Immigration & Customs Enforcement (ICE) case. Stephen Anderson, an analyst for Miller Tabak & Co., says he finds the SEC investigation unusual.
As you recall, Chipotle's legal troubles started in 2010 when ICE conducted an audit of Chipotle's employees in Minnesota, which resulted in 450 workers being terminated for lack of proper work authorization. In February 2011, ICE issued Notices of Inspection to Chipotle's restaurants in the Washington, D.C. and northern Virginia area. This also resulted in the U.S. Attorney's Office in D.C. to begin its own investigation.
Where all of the investigations will end is anybody's guess. However, this is a stark reminder of the serious consequences that violations of immigration laws can cause. Hopefully, this will serve as a wakeup call to those employers who still don't believe that immigration compliance is serious business.