Employer Defense In a Complaint of Documentary Abuse

The Office of the Chief Administrative Hearing Officer (OCAHO) has direct purview over three types of cases stemming from the Immigration and Nationality Act (INA). In this case—Salim Hajiani vs. ESHA USA, Inc. and Sameer Ramjee—Hajiani, the complainant, alleged that the respondent engaged in two of the three areas of jurisdiction over which OCAHO resides: immigration-related unfair employment practices and immigration-related fraud, which are both in violation of the INA.

Hajiani registered a complaint against ESHA USA and Ramjee, accusing the respondents of document abuse, firing Hajiani due to his citizenship status, and taking revenge on him because of a religious discrimination complaint he filed against a former employer. Salim Hajiani is a lawful permanent resident of the US.

Hajiani was hired on October 10, 2011 at Sameer Ramjee’s gas station and convenience store, ESHA, which is in Philadelphia, Tennessee. Hajiani worked at the store until January 10, 2012, when he was fired. On June 26, 2012, he filed a complaint with OSC, to which OSC responded that the complaint didn’t fall under their jurisdiction. Hajiani then filed a charge with OCAHO in February 8, 2013.

Hajiani’s complaint against his employer was a detailed litany of purported incidents of document abuse and job complaints, such as long hours, no overtime pay, and double shifts. He also specified that one of the reasons he was fired was because Ramjee preferred to employ undocumented workers so that he wouldn’t have to pay them overtime or give them benefits.

Hajiani made various allegations against other employees that were not under the scope of OCAHO’s jurisdiction—complaints of undocumented workers also do not fall under the Immigration Reform and Control Act (IRCA). Such instances include cash register shortages, sexual harassment, allegations of tax fraud, selling tobacco to minors, and that he wasn’t hired for store’s first shift because only US citizens were allowed to work that shift. Hajiani also noted in his complaint that his claim was filed timely.

However, his claim of document abuse was not filed in a timely manner. Hajiani alleged that the document abuse occurred in October 2011, but didn’t file the charge with OSC until June 26, 2012. The IRCA strictly says, “no complaint may be filed respecting any unfair immigration-related practice occurring more than 180 days prior ot the filing of a charge with OSC.” Hajiani’s complaint would only have been valid for events after December 29, 2011.

None of Hajiani’s claims—his filed complaint of religious discrimination with the US Equal Employment Opportunity Committee (EEOC), nor his complaints about the terms and conditions of his job—come under the purview of OCAHO, or are protected by IRCA. OCAHO only covers hiring, recruitment, and discharge.

Moreover, Hajiani never submitted evidence that any discrimination occurred. If Sameer Ramjee had been prejudiced against Hajiani, then Ramjee would never have employed Hajiani. Hajiani provided too many explanations of why he was fired, allowing OCAHO to conclude that Hajiani did not divulge his own behaviors that caused Ramjee to fire him.

OCAHO dismissed Hajiani’s complaint against his employer.

See you in my next blog.
Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.Copyright 2014. All rights reserved.

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Employment Practices that Could Lead to Immigration Discrimination, Pt. 2

The Office of Special Counsel (OSC)‘s job is to enforce the Immigration and Nationality Act (INA), which disallows employment-related anti-discrimination based on immigration and citizenship status, and nationality. I previously wrote about OSC’s responses to some employers’ questions on unfair employment practices, such as an employee presenting either invalid or fraudulent documents. OSC also answers immigration-related questions posed by law firms’, pertaining to law firm clients.

If, for example, a general contractor, is hiring out to a subcontractor, and then requires the subcontractor’s employees to again produce original documents — such as a passport or driver’s license — that were already presented during the hiring process and upon completion of a Form I-9 by the subcontractor, then a host of problems can present themselves:

  1. The original documents have expired and the employee has obtained a new version of those documents;
  2. The employee’s immigration status has changed, and thus has different documents to prove work authorization; and
  3. The original documents have been stolen or lost.

This could all amount to a claim by the employees that the general contractor was discriminating against them due to their citizenship or immigration status. Employees could also maintain that they are discriminated against in this case: An employer, who is an E-Verify user, hires a private vendor to disseminate paychecks, also giving the vendor access to Forms I-9. The vendor is authorized to examine the Forms I-9 in order to confirm the identities of employees, who the employer wants to pay.

What could easily happen is that, because the vendor didn’t see the employees’ original documents, he/she inquires about the adequacy of the documents that were initially presented to the employer for I-9 purposes. If the employer feels persuaded to ask his/her employees for further documentation, such a request might be perceived as document abuse, which violates the anti-discrimination provision of the INA. OSC found that the INA was not applicable in either circumstance.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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DOMA Issues After the Passage of “US v. Windsor”

The Defense of Marriage Act (DOMA) is a federal law that gives states the choice to deny recognition of same-sex marriages performed under the laws of other states. Same-sex marriage is currently legal in 10 states; the remaining states have various alternatives on the lawfulness of same-sex unions, affecting the distribution of federal benefits for same-sex couples.

Section 3 of DOMA provides a federal definition of “marriage” as the union of a man and woman. In addition, Section 3 prohibits same-sex married couples from being acknowledged as “spouses” in terms of federal laws, for acquiring federal marriage benefits.

Earlier this summer, the constitutionality of DOMA — Section 3 in particular — was addressed in United States v. Windsor in the Supreme Court, where the plaintiff argued that the federal law encroaches on the Constitution’s equal protection clauses.

The plaintiff and her spouse were New York residents, who had legally wed in Canada. As residents of New York, their same-sex marriage was accepted under state law; however, due to Section 3, their marriage was not accepted by federal law. The federal government then taxed the plaintiff’s late spouse’s estate $363,053. If the marriage had been recognized by federal law, the estate wouldn’t be subject to taxes, and would have been authorized for a marital exemption.

In 2012, the New York Court of Appeals ruled that DOMA’s definitional section — Section 3 — was unconstitutional. More recently, the Supreme Court held that DOMA strips persons of the equal liberty protected by the Fifth Amendment.

Now that Section 3 of DOMA has been struck down, several federal benefits and protections of opposite-sex couples have been extended to same-sex couples in state-recognized marriages:

  • Taxes: The Department of Justice and IRS have ruled that same-sex couples, who have been legally married in states that acknowledge those marriages, will be taxed as married couples. This is applicable to same-sex couples who live in a state that recognizes their marriage as well as to same-sex couples who live in a state that doesn’t recognize their marriage.
  • Social Security Benefits: The Social Security Administration (SSA) now acknowledges same-sex marriages for deciding Social Security benefits.
  • Medicare: Private Medicare plan beneficiaries will now receive equal coverage for care in their spouse’s nursing home.
  • US Visas for Same-Sex Spouses: Same-sex couples’ visa applications will now be processed the same as opposite-sex couples.  Both the Department of State and the USCIS will process same sex applications and apply the same standards as would be applicable to a heterosexual marriage.
  • Benefits for Uniformed Service Members: Benefits from the Department of Defense will now apply to same-sex spouses of uniformed service members and civilian employees.
  • Benefits for Federal Employees: Benefits from the Office of Personnel Management will now apply to same-sex marriages of federal employees and annuitants.

Takeaway

This is a huge step towards equal application of the law and attendant benefits to same-sex couples. Many same-sex couples are returning to the US after spending years abroad with their foreign spouse. What a wonderful ending!

Read my other post on DOMA, USCIS releases FAQ on Immigration Benefits for Same Sex Marriages.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Comprehensive Immigration Reform’s Proposed Points System

A new element of the immigration reform Senate Bill 744, “The Border Security, Economic Opportunity, and Immigration Modernization Act” is coming into play, namely a proposed merit-based points system, similar to ones found in Canada, the UK, Australia and New Zealand. The points system — an immigration-management tool that will be used to decide who is suitable to enter the US — would allocate new immigrant visas to foreign-born people who meet certain criteria. Each year, the new system would allow between 120,000-250,000 immigrants to obtain immigrant visas through an accumulation of points based on skill, employment history and education. This points-based system is intended to replace the current Diversity Visa Lottery.

The “Desired Immigrant”

This points system shows that the US government does indeed favor a particular type of immigrant, a “desired immigrant”. The system would be more beneficial to certain immigrants over others, like those seeking employment-based immigration. Many immigrants would be at a disadvantage, including women, middle aged and older adults, and those from developing nations. The points system would be divided into characteristics that the US considers beneficial in a visa candidate, such as education, occupation, work experience, English language proficiency and age.

The Two Tiers

PointsFig1PointsFig2

During the fifth fiscal year after the immigration reform bill is passed and the points system is introduced, DHS would assign merit-based visas in two “tiers”, and would give 50% of the visas to applicants with the highest number of points in tier 1, and the other 50% to applicants with the highest number of points in tier 2. Tier 1 is for high-skilled workers and tier 2 is for lower-skilled workers.

The points system favors employment and educational categories over the others; and desires immigrants who are educated, experienced, fluent in English, and young. The system seems to be heavily influenced by economics, placing large value in immigrants’ ability to generate economic worth.

Disadvantaged Immigrants

Moreover, the system is biased against women. Women in other countries frequently have less education and work experience opportunities, allowing the points system to naturally favor men. Though Tier 2 acknowledges women by creating a separate caregiver characteristic, it only grants 10 points, which doesn’t count for much when compared to the employment background characteristic, which totals 40 points.

Family-based immigration is also minimized in the system. Similar to the caregiver characteristic, the siblings or adult sons/daughters of US citizens characteristic only receives 10 points, which, again, doesn’t account for a lot. The system also emphasizes age discrimination and nationality bias, by preferring young immigrants who come from countries with low US migration.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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OSC Document Abuse Settlements

The Errors that Employers Commit

Some hiring mistakes end up costing employers a lot of money and time, and loss of reputation. This past October, the Office of Special Counsel (OSC) arrived at an agreement with the New Jersey-based home healthcare provider, Advantage Home Care, LLC, which was charged for violating the anti-discrimination provision of the Immigration and Nationality Act (INA). Advantage Home Care was asking new hires, who were lawful permanent residents, to present additional and different documents during the Form I-9 employment eligibility verification process.

The claim was brought to OSC by an individual who applied for a job. When the individual applied to Advantage Home Care, the company ran a criminal background check and wrongly determined that the individual was using an invalid Social Security number (SSN). The individual went to the Social Security Administration, which concluded that the SSN was valid; however, Advantage Home Care would not employ the applicant. Upon further investigation, OSC found that Advantage Home Care required lawful permanent residents to provide more documents to validate work authorization than US citizens. The INA prohibits such discrimination.

In early October, similar charges were brought upon Las Vegas-based Tuscany Hotel and Casino, LLC. The company was also found to be using discriminatory practices during the employment eligibility verification and re-verification processes.

A complaint was filed with OSC in May 2012, asserting that Tuscany was asking non-citizen job applicants to provide additional or different documents during the work authorization process; US Citizen applicants were not asked to present more documents. Once hired, and in order to remain employed, the company then asked non-citizen employees to provide further document requests during the re-verification process. Moreover, non-citizen employees were subject to severe reviews, which US citizen employees didn’t have to endure.

Expensive Mistakes for Employers

Per OSC’s agreement with Advantage Home Care, the company will pay $1,633 to the individual and $46,575 in civil penalties to the US. Advantage Home Care must also pay back pay to previous job applicants who suffered financially from the company’s policy. Additionally, the company’s human resources staff will be trained in employers’ responsibilities and best practices to prevent discrimination during the employment eligibility verification process. In order to ensure compliance, Advantage Home Care’s staff will also be monitored by OSC for three years.

Under the agreement, Tuscany will pay $49,000 in civil penalties to the US and make payments to the complainant. Tuscany will administer new employment eligibility verification policies and practices that will eradicate any employment-based discrimination. Additionally, the company will train its staff on how best to avoid discrimination in the verification process, and will be monitored for compliance.

Lessons Learnt

Employers must train HR personnel on the proper documentation methods for ‘onboarding’ employees. In addition to training, written guidance or manuals for proper intake are necessary to avoid financial penalties, and work stoppage due to worksite audit. Losses may occur because workers are redirected to answering the government, providing requested documents and undergoing mandatory training as part of the worksite enforcement action. An employer’s reputation can suffer because the audit and fines are reported on government and public websites, and news media. Employers can use an immigration attorney to prevent these costly mistakes.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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What would you do? Examples for I-9 Employers

I recently attended a seminar presented by Ronald Lee, attorney from the Office of Special Counsel (OSC) in St. Louis, Missouri. I thought the examples provided were a useful tool to illustrate why an employer who employs only US citizens should be wary of civil rights violations under Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986 (IRCA).

Henry’s lettuce harvest is not as large as usual–he needs fewer workers this season. He needs to make a choice between Juan and Pedro. Juan is authorized to work and is a permanent resident, or a green card holder; Pedro is also work authorized, but is a refugee with a temporary work permit. Henry ultimately decides to keep Juan because he is a green card holder.

IRCA was the first Federal law that made it illegal to knowingly employ workers who were not authorized to work in the US. After the enactment of IRCA, employers were required to confirm the identity and work eligibility of all employees hired after November 1986, not just workers who appear foreign or those who speak with an accent.

You might think that since your company only hires US workers, your company does not violate I-9. Think again! You are the President of the company with a hiring policy of employing US citizens and not employing anyone who looks foreign. As the President, you and the company are probably engaging in national origin and citizenship status discrimination by requiring all hires to be US citizens.

An aggrieved party can file a complaint with OSC. The complaint form is available at OSC complaints in English, Spanish, Vietnamese and Chinese languages.

Employers can call anonymously to ask for guidance in their hiring practices 1-800-255-8155.

Going back to our example–has Henry committed citizenship status discrimination? Pedro is a protected person under the law. A protected person is a US citizen, a green card holder, permanent resident, refugee or asylee. Henry’s firing decision cannot be based on just ‘status’, nor can Henry only hire US citizens.

Why should employers care? OSC imposes huge fines on the employer, including training and reporting mandates imposed on the employer that last between 18 months and 3 years. These are costs an employer does not need in this, or any, economy.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Copyright 2012.  All rights reserved.

This blog is not intended as legal advice, only as illustrations.

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Civil rights under immigration–is there such a thing?

The Immigration Reform and Control Act of 1986 (IRCA) introduced employer sanctions for ‘knowingly’ hiring undocumented workers. IRCA also initiated the Form I-9 employment eligibility verification process, and established the Office of Special Counsel (OSC) to administer anti-discrimination provisions. Since the advent of OSC, immigrants and “authorized” workers have had to regularly prove their work status.

Given this legal backdrop, the question for employers is whether it is still possible to discriminate against job seekers. In other words, is preferential hiring based on citizenship status legal? It is only legal if the individual is not work-authorized; if it is required by law, regulation, executive order or government contract; or if the individual requires sponsorship.

On a rainy day, a farmer’s lettuce harvest was less abundant than usual. The farmer, Harry, needed fewer farm workers than last season. He had to make a decision between keeping Hector or Jose. He decided to keep Hector because he was a legal permanent resident, and decided against Jose because he was an asylee with a temporary work permit. Did Harry commit citizenship status discrimination?

Yes, Harry committed citizenship status discrimination because the asylee is a “protected person” under the Immigration and Nationality Act (INA). A protected individual is a US citizen, US national, permanent resident, temporary resident, refugee or asylee. Harry could not fire Jose based on the fact that he was an asylee with a temporary work permit.

OSC defines national origin discrimination as treating employees differently based on country of origin and/or ancestry, accent, or appearing to be from a certain country. So if Harry (employer) had at least 6 employees under Missouri law, or 4-14 employees under federal law, he could not discriminate against an applicant based on the fact that he looked foreign.

What are some examples of national origin discrimination? Preferring people from a certain country; only hiring “native English speakers”; and not hiring someone with an accent.

CEO Jane had heard of the penalties for hiring unauthorized workers. Wanting to keep her company intact, she issued an order telling HR not to hire anyone who looked like they had crossed the border illegally. Did she commit national origin discrimination? Yes, she did. All hirees are required to be verified the same way regardless of whether they are immigrants or members of a foreign community.

Section 1 of Form I-9 needs to be completed after the employee takes the job, and by the first paid work day. Aliens who are authorized to work are refugees and asylees, who work with no expiry date. These employees can write N/A if he/she has no expiry date. Employees are not obligated to present documents confirming status.

Section 2 of Form I-9 needs to be completed within 3 business days of the first paid day. Employees must submit documents from List A or List B + C.

Some common problems often arise when filling out Section 2. Employers frequently ask non-US citizen workers to provide List A documents but do not ask the same of US citizen workers, while allowing US citizen workers to submit any document they choose. Employers also request non-US citizen workers to present documents from Lists A, B and C, which is against I-9 regulations. The Handbook for Employers and USCIS‘s I-9 website commonly go unreviewed by employers. Because of this, employers often don’t accept certain documents, such as receipts, from non-US citizen workers.

Employers do not need to update or reverify US citizens, permanent resident cards holders (I-551), and List B documents.

Work-authorized individuals are protected from discrimination, while undocumented individuals are not. A few possible outcomes exist if an employer faces discrimination charges by OSC. Charges can be dismissed if OSC cannot find substantial cause; proof that the employer engaged in discrimination; or if OSC has no jurisdiction. If OSC decides that the employer is at fault, then OSC attempts to arrange a settlement; otherwise it will prosecute. If the settlement is rejected, then OSC reserves the right to file a complaint against the employer. The employee may also file his or her own complaint against the employer.

Part of the settlement that OSC may enter into with the employer could include requiring the employer to rehire the individual(s); reimbursement of back pay; providing injunctive relief to the complainant; requiring the employee to provide training to HR personnel; requiring monitoring of these activities; and reporting back to OSC about compliance with the steps required by settlement. The settlement could also mandate civil penalties.

Civil Penalties for citizenship status discrimination, national origin discrimination and retaliation can be high. Penalties for first-time offenders range from $375-$3,200; second-time offenders: $3,200-$6,500, and third-time offenders: $4,300-$16,000. Penalties for document abuse range from $110-$1,100.

A TNC, or a tentative non-confirmation is when there is a tentative non-match between the applicant’s name and Social Security Number (SSN). If a TNC is issued, the employee should be allowed to contact the federal agency and remedy the situation. An employer has eight federal days to contact Social Security, and Social Security can continue the matter for 120 days. In the meantime, the employer cannot terminate; suspend; delay the employee’s job; persuade the employee to quit; decrease the employee’s hours; deny pay; asking for further documentation; or delay employing the applicant. But if the TNC becomes a “final non-confirmation”, then the employer is within rights to fire the employee.

E-Verify cannot be used as an applicant self-check or prescreening by the employer.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Employers must not insist on ‘green cards’!

Documentary abuse and discrimination against work-authorized workers continues.

The Justice Department (USDOJ) announced today that it reached an agreement with Ross Stores Inc., resolving allegations 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, CA. The allegation was that Ross Stores discriminated against a work-authorized individual when it refused to honor a genuine work authorization document and requested that she produce a green card, despite the fact that the company did not require US citizens to show specific work authorization documents.

The department’s investigation began in response to a charge of discrimination filed by a work-authorized, non-US citizen, who was not permitted to work at the San Ysidro store after showing a valid Employment Authorization Document (EAD) for the Form I-9. The worker complained that Ross Stores refused to allow her to work after presenting her EAD, and that Ross requested more or different documents for the Form I-9 and eventually withdrew her job offer. The worker had already produced sufficient documentation establishing her work authorization.

USDOJ alleged that Ross Stores subjected newly hired non-US citizens to excessive demands for documents, in order to verify their employment eligibility, but did not require the same of US citizens.

The Immigration and Nationality Act (INA) requires employers to treat all authorized workers equally during the employment eligibility verification process, regardless of their national origin or citizenship status.

Employers must not treat authorized workers differently during the employment eligibility verification process based on their citizenship status or national origin.

Under the settlement agreement, Ross Stores agrees 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.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Immigration Attorney

Copyright 2012.  All rights reserved.

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Part VIII: How can employers protect themselves from discrimination?

The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) has 10 recommended steps that helps employers avoid discrimination in the work place.

1. Treat all people the same when announcing a job, taking applications, interviewing, offering a job, verifying eligibility to work, hiring, and firing.

2. Examine and accept original documents that appear genuine and relate to the employee.

3. Do not demand different or additional documents as long as the documents presented prove identity and work authorization, are listed on the back of Form I-9, and appear genuine.

4. As long as the job applicants are authorized to work in the US, avoid requiring job applicants to have a particular citizenship status unless mandated by law or federal contract.

5. Give out the same job information to all callers, and use the same application form for all applicants.

6. Base all decisions about firing on job performance and/or behavior, not on the appearance, accent, name, or citizenship status of your employees.

7. Complete the I-9 form and keep it on file for at least three years from the date of employment or for one year after the employee leaves the job, whichever is later.

8. On Form I-9, verify that you have seen documents establishing identity and work authorization for all your new employees hired after November 6, 1986.

9. If re-verification of employment eligibility becomes necessary, accept any valid documents your employee chooses to present. For re-verification, employees need only present either a List A document or a List C document.

10. Be aware that US citizenship, or nationality, belongs not only to persons born within the fifty states, but may belong to persons born to a US citizen outside the United States. Persons born in Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, American Samoa, or Swains Island also are US citizens or nationals. Also, an immigrant may become a US citizen by completing the naturalization process.

Yet in 2011, we had nine cases of document abuse and seven cases of improper inquiry about citizenship status.

The University of California, San Diego (UCSD) Medical Center committed document abuse when it discriminated against non-US citizen employees by requiring them to produce specific List A documents, but did not ask for the same specific documents from US citizen employees. If a potential employee wrote that he or she was a noncitizen in Section 1 of Form I-9, UCSD Medical Center required them to issue particular List A documents to establish employment authorization. UCSD Medical Center continued the same documentary abuse, asking for specific List A documents, even at the re-verification stage. The employer entered expiry dates of all List A documents and then proceeded to re-verify List A documents that did not need to be re-verified.

The complaints started when a lawful permanent resident employee complained that UCSD Medical Center required her to present an unexpired “green card”, or she would be fired. An inquiry from OSC to UCSD Medical Center confirmed the complaint. From January 2004 to June 2011, UCSD Medical Center required noncitizen new hires to present specific List A documents. UCSD Medical Center misunderstood ‘green card’ for a visa or work permit, and thought this ‘green card’ required re-verification at expiration date. The employer also rejected combinations of List B and C documents if presented by noncitizen new hires; however, if a US citizen new hire presented those very same documents, the employer accepted those documents.

USCD Medical Center was charged with continuing a practice of document abuse according to U.S.C. § 1324b(a)(6), and adopting a “knowingly” and intentionally discriminatory policy toward non-citizens.

In another case, the company Life Generations Healthcare, LLC committed similar discriminatory conduct against its non-US citizen employees: Life Generations required non-US applicants, who were both naturalized and work-authorized, to compile more or different documents than needed on the Form 1-9; the company did not ask the same of native-born US citizens.

The complainant in the case was a work-authorized asylum applicant. When applying for a job, the company’s HR department asked the applicant to present a “green card”. The applicant explained that she did not have a Permanent Resident Card but was authorized to work. The second time the applicant applied for the job, she was asked to present her work authorization papers, or Employment Authorization Document (EAD). With her EAD, she was authorized to work as an asylum applicant. Even though the applicant was qualified for the job, she was told that she would not be employed because her EAD carried a future expiration date.

Between January 1, 2008 and April 12, 2010, the company required all newly hired non-US citizens to produce a List A document during the Form 1-9 Employment Eligibility Verification process because of their citizenship status and/or national origin. During the time the complainant was authorized to work, June 23, 2009-June 22, 2010, Life Generations Healthcare hired five new individuals: one US citizen and four lawful permanent residents. The lawful permanent residents presented a permanent resident card to show work authorization.

Life Generations Healthcare, LLC was found guilty of unfair immigration-related employment practice and in violation of the anti-discrimination provision of the INA, 8 U.S.C. § 1324b(a)(l) and (a)(6).

Citizenship status discrimination refers to employers treating potential employees differently because they may or may not be US citizens, or may or may not be authorized to work in the US. US citizens, recent permanent residents, temporary residents, asylees and refugees are protected from citizenship status discrimination. But there is an exception to the citizenship status discrimination: those permanent residents who do not apply for naturalization within six months of being eligible to apply are not protected from citizenship status discrimination.

Employers seem to be fixated on green cards. From the cases above, the employer’s HR employee asked for a green card during the I-9 employment verification process. In particular, HR was fixated on asking for green cards from non-US citizens even though these employees had produced valid and acceptable documents; HR consistently asked for more documents than required, and refused to accept valid and acceptable documents. This constitutes document abuse.

The result has been that OSC has settled with employers for very costly monetary fines, civil penalties and remediation. In addition, employers have to enter into agreements to undergo training, reporting and monitoring between 18 months to three years. This is an unnecessary expense for the employer. Fines have ranged from $10,000-$115,000.

What is the solution? First, employers should make sure HR personnel understand the laws, especially which documents are required in order to establish identity and work authorization. Second, seek help from an immigration lawyer. Last, use the newest updates and technology to ensure that no mistakes are made.

Next Week: Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Civil Unions

Civil unions are usually viewed as a benefit to same sex couples, allowing the parties to legalize their relationship and recognize that they are a couple just like you and me. The Illinois Senate has passed the bill and it has gone up to Governor Pat Quinn for signature. Governor Quinn is scheduled to sign the bill next year. The law could take effect next summer, June 11, 2011. But with this law, Illinois has enacted a law that has widespread effects. The law is called The Illinois Religious Freedom and Civil Union Act. The law was enacted because same sex couples were denied marriage benefits, and there was no compelling state interest or rational basis to deny same sex couples these marriage benefits. The bill particularly mentions that the purpose is not to interfere with religious freedom or beliefs about marriage. The bill will apply equally to same and opposite sex partners (something new) who want to enter into a civil marriage or union. Same sex partners will be called ‘spouse’, ‘immediate family’, and ‘dependent’. This is important because it has implications for divorce, probate law and other domestic relations law. So same sex couples can marry, divorce and have standing in court to sue on these actions. They can also inherit under probate law as a civil union spouse, sue for emotional distress, wrongful death, loss of consortium under Illinois tort law. As spouse, they can apply for insurance benefits – health and accident, be eligible for group insurance in employee insurance plans. Under Illinois tax law, they will be eligible as spouses for taxes and tax deductions as spouses and dependents. Marriage, under the Illinois law, is prohibited between siblings, uncle and nephew, aunt and niece. Because same sex couples are treated as ‘spouses’ under the marriage and divorce law of Illinois, they can now share rights to make end of life decisions, nursing home decisions, transfer of property to spouses, and survivor benefits. Under workers’ compensation rules, ‘spouses’ can claim benefits. Did I say there was something different about this bill? Well, heterosexual couples who do not want to marry, can opt for a civil union and enjoy the same benefits as a married couple would do. Why, you ask? Let us say that a couple is interested in a domestic partnership because they face loss of health insurance and other benefits, or seniors who will lose their social security survivor benefits, pension or income if they remarry, then this bill offers a way out. Seniors can also now have the right to make emergency decisions for their ‘spouse’ under this new law. It recognizes the relationship without the concomitant problems of marriage. So it provides straight couples some legal support but no title of marriage. Employers should review their employee benefits, especially health insurance, and family leave benefits and their compliance with applicable labor laws. Couples who opt for civil unions under this law can also make end of life decisions–they do not have to have powers of attorney to end, for example, a vegetative state. Remember the Terry Schaivo case? They also have the right to make funeral home decisions and take charge of the remains. But these protections are offered only at the state level and have no application at the federal level. Tax law, immigration law and a host of other laws will not recognize these relationships as spouses. I guess you could then claim a ‘spouse’ under the new law as a dependent under state law but not federal law. The federal law, the Defense of Marriage Act, recognizes marriage as a union only between a man and a woman. DOMA does not recognize civil unions even if the union is recognized by the state. This is a legal conundrum because the full faith and credit clause of the US Constitution makes it mandatory to recognize the laws of another state in the Union, and accord foreign state laws equal application and status. But same sex unions or marriages are non-existent in federal law. A United States Citizen or legal permanent resident cannot sponsor a same sex partner of foreign citizenship to live with them in the United States as their ‘spouse’. Same sex marriage was banned in California after Proposition 8 was passed. But on August 4, 2010, a federal district court decided that such a ban violated the Equal Protection clause of the US Constitution. The equal protection clause does not guarantee equality among individuals or classes but only that the laws would be applied equally to all. The question remains for us: are some more equal than others? Is the federal government practicing discrimination by the unequal application of laws, or by denying rights to some? Is this a slippery slope we should not venture on?

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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