OSC Settles a Number of Immigration-Related Discrimination Claims - Articles

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Posted by: Christy Gibson on Jul 10, 2014

By Bruce E. Buchanan*

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), a division of the U.S. Department of Justice, has recently settled a number of cases where employers were alleged to have engaged in discrimination against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).   

The OSC is responsible for enforcing the antidiscrimination provision of the INA, which prohibits citizenship and national origin status discrimination in hiring, firing and recruitment or referral for a fee, as well as document abuse – discriminatory I-9 form and E-Verify practices. (If an employer has 15 or more employees, the EEOC has jurisdiction over national origin discrimination.)

The INA’s anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin. 

Potter Concrete settled with the OSC after the OSC’s investigation concluded the company subjected non-U.S. citizen new hires to unlawful demands for specific documentation issued by the U.S. Department of Homeland Security (DHS), in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation. The investigation also revealed the company selectively utilized E-Verify to confirm the employment eligibility of individuals they knew or believed to be non-U.S. citizens or foreign born. 

In Commercial Cleaning Systems, the investigation found the janitorial services company required work-authorized non-U.S. citizens to present specific documentation issued by DHS in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation. 

In Mexico Foods LLC, a/k/a El Rancho Corp., the OSC found El Rancho required employees, who were lawful permanent residents (LPRs), to present a new employment eligibility document when their Permanent Resident cards expired. The law prohibits this practice because LPRs have permanent work authorization in the United States, even after their Permanent Resident cards expire.  The investigation also revealed El Rancho routinely requested a specific work authorization document from LPRs during the initial employment eligibility verification.  OSC found El Rancho’s discriminatory practices were based on employees’ citizenship status.       

In SK Food Group Inc., the investigation revealed the company subjected non-U.S. citizen new hires to unlawful demands for specific documentation issued by DHS in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation. 

All of these cases originated as referrals from the U.S. Citizenship and Immigration Services based upon review of E-Verify data by the Monitoring and Compliance Branch of the USCIS.

Under the settlement agreements, the companies agreed to the following:

Potter Concrete– pay $115,000 in civil penalties and revise its employment eligibility verification policies;

Commercial Cleaning Systems– pay $53,550 in civil penalties to the United Statesand create a $25,000 back pay fund to compensate individuals who may have lost wages as a result of the company’s discriminatory document practices;

El Rancho– pay $43,000 in civil penalties; and

SK Food– pay $40,500 in civil penalties to the United States and identify and provide back pay to any individuals who suffered lost wages as a result of the company’s alleged discriminatory documentary practices.

In addition, each of the companies must undergo training on the anti-discrimination provision of the INA and be subject to monitoring of its employment eligibility verification practices for one year to 18 months.

Employers need to be aware that it cannot use separate standards in documentation from U.S. citizens and non- U.S. citizens. If one engages in such a practice, it is discriminatory and someone may file a complaint with the OSC, which could lead to costly civil penalties and back pay.

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*Bruce E. Buchanan is an attorney at the Nashville and Atlanta offices of Siskind Susser P.C., where he practices immigration and employment law.  He is a graduate of Vanderbilt University School of Law. Bruce writes a blog on employer immigration compliance, located at http://blogs.ilw.com/blog.php?29223-I-9-E-Verify-Immigration-Compliance, and is a contributor toLawLogix’sI-9 and E-Verify Blog, located a thttp://www.lawlogix.com/blog. Bruce may be reached at bbuchanan@visalaw.com or (615) 345-0266.