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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Justice Department Finds Practices of Discriminatory Policing in North Carolina

The Justice Department found that the Alamance County Sheriff’s Office (ACSO) in North Carolina operates in a practice of discriminatory policing, specifically targeting Latinos.

Policing Practices in Violation of the Constitution and Federal Law

By using methods that discriminate against Latinos, ACSO has violated the Equal Protection Clause of the Fourteenth Amendment; the Fourth Amendment; the Violent Crime Control and Law Enforcement Act; and Title VI. ACSO’s modes of discriminatory policing are as follows:

  • ACSO deputies target Latino drivers for traffic stops;
  • A study of ACSO’s traffic stops on three major county roadways found that deputies were between four and 10 times more likely to stop Latino drivers than non-Latino drivers;
  • ACSO deputies routinely locate checkpoints just outside Latino neighborhoods, forcing residents to endure police checks when entering or leaving their communities;
  • ACSO practices at vehicle checkpoints often vary based on a driver’s ethnicity.   Deputies insist on examining identification of Latino drivers, while allowing drivers of other ethnicities to pass through without showing identification;
  • ACSO deputies arrest Latinos for minor traffic violations, while issuing citations or warnings to non-Latinos for the same violations;
  • ACSO uses jail booking and detention practices, including practices related to immigration status checks, that discriminate against Latinos;
  • The sheriff and ACSO’s leadership explicitly instruct deputies to target Latinos with discriminatory traffic stops and other enforcement activities;
  • The sheriff and ACSO leadership foster a culture of bias by using anti-Latino epithets; and
  • ACSO engages in substandard reporting and monitoring practices that mask its discriminatory conduct. (source)

Policing Reforms

The Justice Department’s inquiry allowed for a thorough investigation, comprising of a detailed analysis of ACSO policies, procedures, training materials and records on traffic stops, arrests, citations, vehicle checkpoints and other archived evidence. For the inquiry, the Justice Department also interviewed former ACSO employees and Alamance County residents.

In order to reform ACSO’s discriminatory policing, the police department must accept structural and fundamental change by creating and employing new policies, procedures, and training so as to promote constitutional policing. ACSO must also be held accountable for their actions, and guarantee the Justice Department that any unlawful bias has been eradicated. The Justice Department will request a court-enforced, written document that will help to solve ACSO’s violations.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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Missouri Lawyers Weekly: Immigration decision may have impact on Missouri laws

My coworker, Diane Metzger, and I were recently interviewed for an immigration article in Missouri Lawyers Weekly. The article focuses on the Supreme Court’s ruling of Arizona immigration law, and how the ruling may affect Missouri immigration law.

Reprinted with permission from Missouri Lawyers Media.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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Arizona Immigration Law

Arizona’s aggressive immigration law was recently challenged in the Supreme Court on the grounds that it may be unconstitutional. However, while multiple provisions were struck down, one still remains: “papers, please”.

Papers Please

“Papers, please”– Section 2(B) in SB 1070 — allows police to inquire about immigration status if there is any “reasonable suspicion” that the person in question is an illegal immigrant. Many believe that this provision will invite the police to employ racial profiling.

Questionable Constitutionality

Arizona’s immigration law was largely brought to trial because of its questionable unconstitutionality — the Supreme Court unsure if state laws were hindering the federal government’s right to maintain immigration laws. However, SB 1070 was upheld because the Justices were unable to decide whether the law was replacing or reinforcing federal immigration laws. Along with “papers, please”, police are also allowed to check an arrestee’s immigration status before release.

Constitutional Rights Attacked

There is much room for debate with the “papers, please” provision. Equal protection, free speech and due process are all issues that could strike the provision. While Arizona won Section 2B, the Supreme Court was successful in striking down three provisions that were unconstitutional. Two provisions deemed it a crime for illegal immigrants to reside and look for employment while in Arizona. The third provision allowed the police to arrest anyone whom they believe carried out a deportable offense.

There are several states, including Missouri, that have similar bills in the state Senate and House that are waiting passage. These laws strengthen the law enforcement’s ability to “racially profile” drivers on the road. However unless it is in the course of an offense, law enforcement cannot stop a person to check for the immigration papers.

See you in my next blog.

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

Tara Mahadevan

Copyright 2012. All rights reserved.

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