OSC Continues to Pursue Companies Who Discriminate on the Basis of Immigration Status

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[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, an immigration attorney in the Nashville, TN office of Siskind Susser PC.]

March was a busy month for the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, a division of the Department of Justice. It settled cases against Onward Healthcare, Indrescom Security Technology, and Ross Department Stores, who were each accused of immigration discrimination.

Onward Healthcare, a healthcare staffing company based in Connecticut, resolved allegations that the company posted discriminatory job advertisements on its home page and third party websites that limited its jobs to U.S. citizens. Over a one year period, thousands of Onward Healthcare’s job postings impermissibly limited applications to U.S. citizens, even though work-authorized immigrants, such as lawful permanent residents, asylees and refugees, should have been allowed to apply.

The Immigration and Nationality Act (INA) generally prohibits employers from discriminating on the basis of citizenship status unless required by law, regulation or government contract. It was determined Onward Healthcare had no legal basis for its stated citizenship preference. Under the settlement agreement, Onward Healthcare agreed to pay $100,000 in civil penalties, to change its internal policies and manuals to reflect the INA’s protections, and to be subject to reporting and compliance monitory requirements for a period of three years.

The Indrescom Security Technology and Ross Stores settlements involved situations where the employers demanded more documentary requirements for permanent residents than U.S. citizens. Specifically, Ross Stores refused to honor a work authorization document and demanded a permanent resident card while Indrescom refused to accept a valid driver’s license and Social Security card and demanded a permanent resident card.

Per the settlement agreement, Ross Stores agreed to reinstate the charging party and pay $6,384 in back pay plus interest to the charging party and $10,825 in civil penalties to the United States. Ross Stores also agrees to comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process and to be subject to reporting and compliance monitory requirements for 18 months. Similarly, Indrescom agreed to pay $7,000 in back pay to the charging party, train its human resources personnel and be subject to reporting and compliance monitoring requirements for three years.

The lessons to be learned through these settlements are do not limit you applicant pool to only U.S. citizens unless you have a government contract or similar situation which requires only U.S. citizens and do not demand the employee’s permanent resident card if they have already provided you with sufficient documentation to establish work authorization.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

Discover how Tracker’s electronic I-9 software service lets you produce flawless I-9s every time. Feel free to contact us we’d love to hear from you.

OCAHO and ICE Continue to Disagree on Size of Penalties for I-9 Violations

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[Editor’s Note: today’s post is brought to you by guest blogger Bruce Buchanan, an immigration attorney in the Nashville, TN office of Siskind Susser PC.]

ICE fine right ahead!

“ICE fine, right ahead!”

Recent decisions of the Office of the Chief Administrative Hearing Officer (OCAHO) continue to demonstrate Immigration and Customs Enforcement (ICE) and OCAHO strongly disagree on the appropriate level of penalties for small employers committing I-9 violations. Three recent OCAHO decisions demonstrate that ICE continues to seek large penalties against small employers committing numerous I-9 violations while OCAHO continues to use its discretion to reduce the penalties by 50% or more.

In the most recent OCAHO decision, United States v. Pegasus Restaurant, 10 OCAHO No. 1143 (2012), OCAHO reduced ICE’s proposed penalty of $131,554.50 to $49,427, a reduction of about 62%. In this matter, the restaurant failed to fill out any I-9’s for 134 hired employees over a three year period. Of the 134 employees, four were not authorized to work. ICE sought a penalty of $981.75 per violation. ICE did not seek to aggravate or mitigate the proposed penalty based upon the five designated factors – size of business, good faith, history of violations, seriousness of the violations, and presence of unauthorized employees.

OCAHO accepted the restaurant’s argument that the proposed penalties were disproportionate in light of the size and resources of the business. OCAHO cited precedent which states a penalty should be sufficiently meaningful to accomplish the purpose of deterring future violations without being “unduly punitive” in light of the respondent’s resources; thus, proportionality is the key. See United States v. Jonel, 8 OCAHO No. 1008 (1998), and United States v. Minaco Fashions, Inc., 3 OCAHO No. 587 (1993).

Therefore, OCAHO reduced 130 violations from $981.75 per violation to $350 each while refusing to reduce the penalty involving the four unauthorized employees. OCAHO found a penalty of $47,427 to be “sufficiently substantial” to have a significant deterrent effect going forward.

Similarly, in United States v. Ice Castles Daycare Too, Inc., 10 OCAHO No. 1142 (2011), OCAHO substantially reduced the employer’s penalty from $55,352 to $18,500. In Ice Castles Daycare, the evidence established over a three-year period of time the daycare center failed to prepare I-9s for 74 employees although it did examine appropriate documents to verify employment eligibility.

ICE sought a penalty of $748 for each of the 74 violations. This amount was a reduction of the baseline penalty of $935 per violation based on 5% mitigation for each of these factors – small size of business (it averaged 30 employees), good faith of employer, no unauthorized employees and no history of violations.

The daycare asserted a fine of $55,000 could put them out of business since its ordinary business income from 2006 to 2009 was $21,000, ($4,000), $5,500, and $38,000, respectively. Based upon Ice Castles Daycare’s ability to pay, its small size, and its efforts to verify employment authorization, OCAHO reduced the 74 violations to $250 for a total of $18,500. Thus, the penalties were reduced by about 66%.

Previously, in United States v. Snack Attack Deli, Inc., 10 OCAHO No. 1137 (2010) (Subway case), OCAHO reduced the restaurant’s penalty from $111,000 to $27,150, a reduction of about 75%. In doing so, OCAHO cited the company’s inability to pay and relatively small size.

Two recent decisions where the penalties were not reduced by over 50% are United States v. Alyn Industries, 10 OCAHO No. 1141 (2011), and United States v. Ketchihan Drywall Services, 10 OCAHO No. 1139 (2011). However, in both of these cases, the employers were not small employers and had the ability to pay substantial fines.

My advice to small employers, who are facing substantial ICE penalties and cannot afford to pay them, is to hire an immigration attorney with experience in ICE audits and litigation (hopefully you have already done so) and litigate your case before OCHAHO. If successful, the reduction in the penalty should be greater than the cost of legal fees for the litigation, especially since the litigation involves a motion for summary judgment based upon the record evidence, not a hearing with witnesses.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

Discover how Tracker’s electronic I-9 software service lets you produce flawless I-9s every time. Feel free to contact us we’d love to hear from you.

U.S. Citizenship & Immigration (USCIS) Publishes New, Proposed Form I-9

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[Editor’s Note: today’s post was written by Delisa J. Futch, a Partner in Foster Quan LLP Austin office and past Vice President for Conference Planning and Publications for the State Bar of Texas Immigration and Nationality Law Section. This article was originally published in Foster Quan Immigration in the News.]

 

On March 27, 2012, U.S. Citizenship & Immigration Services published a notice of proposed revision to the Form I-9 in the Federal Register. Most notably, the proposed form is two pages rather than one page, and the instructions comprise six pages instead of three. The form appears to be ready for “form-fill” and seems to facilitate electronic completion and retention, though both the form and the rules continue to permit manual completion and retention of the Form I-9. The proposed form is open for comment until May 29, 2012.

Detailed Instructions, Greater Clarity
Overall the modifications provide more detailed instructions for completion of the form, and greater clarity concerning the specific information required in each field. For instance, fields requesting specific numbers clearly illustrate the number of digits the required number should have. Additionally, the new form clarifies that employers must enter “the employee’s first day of work for pay (mm/dd/yyyy)” in Section 2. The current version of the Form I-9 requires completion of “the employee began employment on (month/day/year) ______”.

New Fields
Completely new fields include the request for additional employee contact information – e-mail address and telephone number – though completion of these fields is optional. The new form also contains an additional block of fields for entry of document numbers and expiration dates under List A. Additionally, at the top of the second page, the employee’s name must be re-entered.

Separate, Enumerated Employer Attestations
Other proposed changes relate to the employer attestation. The proposed form separately enumerates the following with respect to the attestation the employer representative must make when signing the Form I-9: “I attest, under penalty of perjury, that (1) I have examined the document(s) presented by the above-named employee, (2) the above-listed document(s) appear to be genuine and to relate to the employee named, and (3) to the best of my knowledge the employee is authorized to work in the United States.”

List of Acceptable Documents
Proposed changes to the List of Acceptable Documents are minimal. The proposed form clarifies as follows with respect to the presentation of a Social Security Account Number card:

“A card that includes one of the following restrictions, for example, is not acceptable: (1) NOT VALID FOR EMPLOYMENT; (2) VALID FOR WORK ONLY WITH INS AUTHORIZATION; (3) VALID FOR WORK ONLY WITH DHS AUTHORIZATION.” The form also refers employers to the Employer Review and Verification section of the form’s instructions for additional information regarding acceptable receipts.

The new, proposed Form I-9 is not yet effective, and employers should continue to use the current Form I-9, with a revision date of 08/07/09, expiring on 08/31/2012.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

Discover how Tracker’s electronic I-9 software service lets you produce flawless I-9s every time. Feel free to contact us we’d love to hear from you.

US Dept. of Justice Settles I-9 Overdocumentation Claim Against Ross Stores Inc.

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On March 23rd, 2012, the U.S. Justice Department announced that it reached an agreement with Ross Stores Inc ., who will pay more than $17,000 to settle a claim that the company had engaged in a pattern or practice of discrimination based on citizenship status while verifying employment eligibility at its store in San Ysidro, Calif.

The claim alleged that Ross Stores discriminated against an employee by refusing to hire her, improperly requiring her to provide the company with a green card, even though she presented a genuine employment authorization document (EAD) for Section 2 of the Form I-9.  More broadly, the department accused Ross of subjecting newly hired non-U.S. citizens to excessive demands for documents issued by the Department of Homeland Security, in order to verify their employment eligibility, but did not require the same of United States citizens.

In the settlement, Ross Stores, Inc. agreed to reinstate the employee and pay $6,384 in back pay plus interest. The retailer also agreed to pay the government $10,825 in civil penalties. Ross Stores also agrees to comply with the law, to train its human resources personnel about employers’ responsibilities to avoid discrimination in the employment eligibility verification process and to be subject to reporting and compliance monitory requirements for 18 months.

The anti-discrimination provision (§ 274B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b requires employers to treat all authorized workers equally during the employment eligibility verification process, regardless of their national origin or citizenship status. This federal law specifically prohibits document abuse (unfair documentary practices during the Form I-9 employment eligibility verification process.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

 

Discover how Tracker’s electronic I-9 software service lets you produce flawless I-9s every time. Feel free to contact us we’d love to hear from you.

E-Verify Hiring Sites

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[Editor’s Note: today’s video post is brought to you by guest blogger Katie Minervino, Associate Attorney in the Immigration Group at Pierce Atwood LLP. Katie assists employers and employees in employment authorization needs and provides clients with support and guidance on employment verification requirements, best practices, and audit response.]


Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only. Information provided through this website should never replace the need for involving informed counsel on your employment and immigration issues.

 

Discover how Tracker’s electronic I-9 software service lets you produce flawless I-9s every time. Feel free to contact us we’d love to hear from you.