IRCA's ANTIDISCRIMINATION PROVISION
HOW IT WORKS AND CAN IT BE USED TO
COMBAT ANTI-IMMIGRANT FEARS?
Andrew M. Strojny(*)
In 1986, Congress passed the Immigration Reform and Control Act (IRCA). This Act, for the first time, subjects all employers to sanctions for knowingly employing individuals unauthorized to work in the United States.(1) Because Congress feared that the threat of sanctions might cause employers to discriminate against those who look or sound foreign, it included a provision that prohibited discrimination on the basis of citizenship status and national origin, Section 102. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) was created to enforce IRCA's prohibition against national origin and citizenship status discrimination. OSC, which until the Spring of 1994 was an independent component within the Department of Justice, is now a part of the Department's Civil Rights Division.
Remarkably since IRCA's passage, some now fear that employers discriminate against U.S. citizens in order to employ aliens, both legal and illegal. Some have even suggested that temporary work visa programs may foster this discrimination. For example, in April, 1996, the Department of Labor's Office of Inspector General reported that the H-1 visa program is subject to abuse.(2) It said that "the program does not protect U.S. workers jobs; . . ." and that while the program:
is intended to provide U.S. businesses with timely access to the "best and the brightest" in the international labor market to meet urgent but generally temporary business needs (footnote omitted). . . . [w]e found that the program does not always meet urgent, short-term demand for highly skilled, unique individuals who are not available in the domestic work force: instead it serves as a probationary try-out employment program for illegal aliens, foreign students and foreign visitors to determine if they will be sponsored for permanent status.(3)Senator Edward Kennedy has charged that "hundreds of thousands of good jobs that should be available to Americans"(4) are jeopardized by the program. He has pushed for legislation that would make it illegal to layoff American workers and bring in either permanent or temporary workers to replace them.(5)
Whatever the merits of this fear, IRCA's antidiscrimination provision protects both work authorized aliens and citizens against employment discrimination. OSC has taken the position that if someone is hired under some work-related nonimmigrant visa programs in lieu of a qualified and available U.S. worker applicant, that could constitute citizenship status discrimination in violation of Section 102. Such even handed application of the antidiscrimination provision can provide an important safety value for fears that legal aliens are taking jobs from citizens. If the fears are true, the provision provides a remedy. If they are false, the provision provides a mechanism to show that this aspect of anti-immigrant feeling is unfounded. In the process, citizens can come to understand that the provision protects all workers, legal aliens and citizens alike, against unlawful employment discrimination and it demonstrates that all have a stake in its vigorous enforcement. At the same time, since IRCA provides a remedy for what unlawful citizenship status discrimination that does exist, it may serve to deter restrictive limits on legal immigration.
II. IRCA'S ANTIDISCRIMINATION PROVISION - WHAT IS IT?
Section 102 of IRCA added a new provision, Section 274B, to the Immigration and Nationality Act (INA): 8 USC § 1324b. It is first and foremost a civil rights statute that happens to be part of the INA. The provision was enacted because of IRCA's employer sanctions provision, which subjects all employers to sanctions for knowingly employing individuals unauthorized to work in the United States. Because Congress feared that the threat of sanctions might cause employers to discriminate against those who look or sound foreign, it included a provision that prohibited discrimination on the basis of citizenship status and national origin. The Administrative Law Judge (ALJ) in United States v. Marcel Watch succinctly set out the background against which Section 102 came into existence. He stated:
Since World War II and especially after the civil rights reforms of the 1960s and 70s the guarantee of equal protection under law had been expanded beyond racial and religious bigotry to prohibit discrimination implicating gender, national origin and age. As understood by the Supreme Court, however, in Espinoza v. Farah Mfg., 414 U.S. 86 (1973), discrimination based on citizenship (sometimes also referred to as alienage) was not legislatively prohibited. It was this omission in large part that Section 102 of IRCA was enacted to correct. [citations omitted].
The central role of Congress in defining citizenship -- its acquisition, its loss, how it is judged, the consequences citizenship or non-citizenship entail -- lies at the heart of Section 102 of IRCA. In discussions of the employer sanctions provisions of what was to become IRCA, Congress made clear a paramount concern arising from the pending legislation. Congress was concerned that United States citizens and others who, though not citizens, are legally in the U.S., who "looked or sounded foreign" might otherwise fall victim to discriminatory practices by employers trying to screen out employees whose status in this country is illegal. [citation omitted].(6)In many respects, recent events have shown that these Congressional fears were well founded. The general public often treats IRCA's employer sanctions provisions as a strict liability statute, i.e., that it is a violation of the law to employ unauthorized workers regardless of whether the employer knew or should have known of their unauthorized status. However, this is not what the law provides. The law prohibits the knowing employment of individuals unauthorized to work.(7) It is this public misconception, more than any other factor, that leads to violations of IRCA's antidiscrimination provision.
III. IRCA'S ANTIDISCRIMINATION PROVISION - WHAT DOES IT DO?
IRCA's antidiscrimination provision defines four unfair immigration related employment practices. Two practices prohibit employment discrimination on the basis of national origin or citizenship status in hiring, firing, recruitment or referral for a fee.(8) It also is an unfair immigration related employment practice to require more or different documents than are legally acceptable for employment verification purposes or to refuse to honor documents tendered for such purposes, if they are legally acceptable and on their face reasonably appear to be genuine, if it is done with the intent to discriminate.(9) Finally, it is also an unfair immigration related employment practice to intimidate, coerce, threaten, or retaliate against individuals who file charges or otherwise cooperate with an investigation, proceeding, or hearing under the Act.(10)A. National Origin Discrimination
The antidiscrimination provision protects all individuals, other than unauthorized aliens, from national origin discrimination.(11) It applies to all employers of 4 or more employees.(12) OSC does not have jurisdiction over a charge of national origin discrimination covered by Section 2000e-2 of Title 42, i.e., Section 703 of Title VII of the 1964 Civil Right Act.(13) Section 2000e(b) defines an employer covered by Title VII as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding years."(14) In other words, the Equal Employment Opportunity Commission (EEOC) generally has jurisdiction over national origin discrimination charges involving employers of 15 or more employees under Title VII.(15) As a practical matter, this means OSC has jurisdiction over national origin discrimination involving employers of 4 to 14 employees.(16) EEOC has jurisdiction over employers of 15 or more employees.
IRCA does not specifically address the question of whether its prohibition against national origin discrimination applies to Federal employees. The reference to Section 2000e-2 is not decisive because Section 2000e-2 does not cover Federal employment; Section 2000e-16 of Title 42 does. However, the statute goes on to state that no national origin charge can be filed with OSC if a charge based on the same set of facts has been filed with EEOC "under Title VII of the Civil Rights Act of 1964."(17) The general reference to Title VII would suggest that Title VII was intended to be the exclusive remedy for national origin complaints of employment discrimination against the Federal government. In addition, IRCA's antidiscrimination provision provides that:. . . nothing in this Section should be construed to restrict the authority of the Equal Employment Opportunity Commission to investigate allegations . . . of unlawful employment practices as provided in Section 706 of the Civil rights Act of 1964 . . . or any other authority provided therein.(18)
1. Sovereign ImmunityIRCA's providing an alternate forum for hearing Federal national origin employment discrimination complaints involving hiring and firing would certainly be a diminution of EEOC's exclusive administrative review authority under Title VII.
Any issue in this area became largely moot in 1994 when the 10th Circuit Court of Appeals held that IRCA had not waived the Federal government's sovereign immunity in a case called Hensel v. Office of Chief Administrative Hearing Officer. Thus ALJs lack jurisdiction to hear cases against Federal respondents.(19) Prior to Hensel, some ALJ decisions had concluded that sovereign immunity had been waived.(20) There have been none reaching that conclusion since.Hensel is significant for an additional reason. Under IRCA's antidiscrimination provision, OSC has 120 days after receiving a complete charge of discrimination to make a prosecutorial decision. At the end of this 120 day period, if it has not filed a complaint before an ALJ, OSC must notify the charging party that s/he has 90 days from receipt of notification to file a private complaint before an ALJ.(21)
Under this scheme, the government has the initial opportunity to develop the law, since during this initial 120 day period only OSC can bring an action.(22) However, OSC does not have the power to prevent a charging party from bringing his/her own action after the 120 day period has expired. If no one files a complaint within 210 days (the 120 day OSC exclusive filing period plus the 90 day charging party filing period),(23) the right to file appears to be lost.
2. Sovereign Immunity after the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.Hensel changed this scheme as it applies to state and local governments. The decision involves a private action filed against the University of Oklahoma, a creature of the state of Oklahoma, and the Oklahoma City Veterans Affairs Medical Center, a creature of the Federal government. OSC had declined to file a complaint, so the charging party, Priscilla Hensel filed a private action. She alleged citizenship status discrimination. The ALJ found no discrimination.(24) Ms. Hensel appealed.As mentioned, the 10th Circuit found that sovereign immunity had not been waived as to the Federal respondent and dismissed the action as to the Oklahoma City Veterans Affairs Medical Center. As to the University of Oklahoma, the court also found that IRCA had not waived a state's immunity from suit under the Eleventh Amendment to the Constitution, (25) and Ms. Hensel's action against the University. If the Hensel Court's analysis is correct, only the United States, as represented by OSC, can sue a state for a violation of IRCA's prohibition against citizenship status discrimination.(26)
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) may have reopened the question of whether sovereign immunity has been waived as to the Federal government. Section 412 of IIRAIRA amended IRCA's employer sanctions provision to make clear that the provision applied to the Federal government.(27)It would seem anomalous for IRCA's nondiscrimination provision not to also apply. Congress after all specifically enacted Section 102 to act as a safeguard against discrimination caused by employer sanctions provisions. There is no reason to believe that such protections are any less required in the Federal employer arena than in the private employer one.B. Citizenship Status Discrimination
IRCA's antidiscrimination provision prohibits citizenship status discrimination against "protected individuals".(28) It applies to all employers of 4 or more employees. OSC has jurisdiction over all charges of citizenship status discrimination with respect to hiring, firing, or recruitment or referral for a fee.(29) This includes layoffs.(30) OSC has no jurisdiction over charges of citizenship status discrimination involving terms and conditions of employment(31) unless they rise to the level of a "constructive discharge."Only "protected individuals" are covered by the prohibition against citizenship status discrimination. Citizens or nationals of the United States are protected individuals,(32) as are certain classes of aliens.(33) An alien who is lawfully admitted for permanent residence is protected.(34) Also protected are aliens granted the status of an alien lawfully admitted for temporary residence under 8 USC § 1160(a) (IRCA's Special Agricultural Worker (SAW) program); 8 USC § 1161(a) (IRCA's Replenishment Agricultural Worker (RAW) program); or 8 USC § 1255a(a)(1) (IRCA's amnesty program).(35) IRCA also protects aliens admitted as refugees under 8 USC § 1157 or granted asylum under 8 USC § 1158.(36)
Aliens who are protected individuals lose their protection from citizenship status discrimination if they do not apply for naturalization within six months of becoming eligible by virtue of a period of lawful permanent residence. If the application is made on a timely basis, the alien must become naturalized within two years of applying (not counting Immigration and Naturalization Service (INS) processing time), unless it can be established that s/he is actively pursuing naturalization.(37)
"Actively pursuing naturalization" has been given a broad reading. For example, the Administrative Law Judge (ALJ) in Southwest Marine found that a permanent resident was protected from citizenship status discrimination even though he had withdrawn his naturalization petition. The ALJ stated:Clearly the very act of withdrawal of his petition for naturalization was taken in order to protect his pursuit of citizenship status. He withdrew not because of lack of interest or change of intent, but because he was advised by the INS that failure to withdraw would delay his pursuit of citizenship status. He took steps to increase his ability to read and write English and at the time of hearing herein had obtained the necessary papers to reapply for naturalization . . . . (38)
In Dhillon v. Regents of the Univ. of California,(39) the ALJ determined that the injured party, Dhillon, was still protected from citizenship status discrimination even though he had not filed for naturalization within 6 months of becoming eligible as defined by the INA and INS operational instructions. Dhillon became a permanent resident on May 28, 1982, but did not apply for naturalization until October 31, 1990, over eight years later.
Generally, a permanent resident alien is first eligible to apply for naturalization once s/he has resided in the United States for five years after attaining permanent resident status.(40) According to the statute, the alien must have resided continuously in United States. However, INS Operational Instruction 316.1(b)(4) provided that a permanent resident may be absent from the country for as long as 364 days without breaking the continuity of residence.(41) Dhillon had been absent from the country, but for less than 364 days.(42) Thus, under INS operational instructions, he was eligible to petition for naturalization as of May 6, 1987. The ALJ still found that he was a protected individual even though he did not file for naturalization until October 31, 1990. The Judge reasoned:
1. Exceptions Allowing Citizenship Status DiscriminationI view § 316 of the INA, 8 USC § 1427(a) and (b) as plainly stating that after a lawful permanent resident has been absent from the United States for a year or more, he or she is eligible to file a petition for naturalization five years from the date of his or her return. Because I am not bound by the INS's method of calculating the five-year continuous residence requirement for naturalization as set out in Operations Instruction 316.1(b)(4), because the plain reading of the statute provides a different method of calculating the five-year continuous residence period, and because Dhillon was not aware of the INS's interpretative rule, I conclude that Operational Instruction 316.1(b)(4) does not apply to Dhillon with regard to whether he is a "protected individual" under IRCA [note omitted]. Rather, I find that the plain meaning of 8 USC § 1427(a) and (b) is controlling in calculating the five-year continuous residence requirement period as applied to Dhillon.(43)
Citizenship status discrimination under IRCA's antidiscrimination provision is permissible within limited exceptions.(44) It is allowed if required to comply with law, regulation, or executive order. It is also allowed when it is required by Federal, State, or local government contract. Finally, it is allowed when the Attorney General determines it to be essential for an employer to do business with an agency or department of the Federal, State, or local government. However, there actually has to be such a requirement and it has to require the citizenship status discrimination in question.
An erroneous belief that a law requires citizenship status discrimination does not serve as a legal excuse for such discrimination. As the ALJ stated in Marcel Watch, a case where the employer mistakenly thought IRCA's employer sanctions provisions(45) required the alleged discrimination:
Failure by a prospective employer to reasonably understand or perform its obligations under Section 101 [IRCA's employer sanctions provision] is no warrant for avoiding culpability under Section 102 [IRCA's antidiscrimination provision]. Accordingly, I hold here that reckless prescreening of prospective employees as a rationale for complying with employer sanctions imperatives violates 8 USC §1324b.(46)If there is a difference between what a regulation appears to require and what is actually done in practice to implement it, the actual practice is controlling. In United States v. Southwest Marine the respondent argued that Federal regulations required it to discriminate in the employment of a permanent resident alien. The ALJ found that whatever the regulation may have required, the actual practice followed in its implementation was quite different. In considering the applicability of IRCA's exception for citizenship status, she stated:
2. OSC Interpretation of ExceptionsIn view of the intent of IRCA to protect against citizenship discrimination and given a history of more than 20 years of the naval contractual relations involved herein being governed by the practice rather than the language of the regulation, I find that for purposes of the Section 1324b(2)(C) exception, it is the actual practice that is controlling. . . . I further find that Respondent's reliance upon the language of the regulation does not bring it within the purview of the Section 1324b(2)(C) exception. In this regard, I conclude that Respondent's reliance upon the language of this section was unreasonable. . . . for almost 20 years 32 CFR 765.5(c) was never enforced.(47)
OSC has interpreted each of these exceptions narrowly. For example, an employer cannot impose an across-the-board U.S. citizen-only policy for all its jobs unless such a requirement is legally imposed for each position. Convenience alone is not an acceptable justification.(48)Until 1993, the existence of a legal requirement mandating citizenship status discrimination would have ended the examination of the legal requirement in question. However, the Ninth Circuit's decision in Tovar v. United States Postal Service,(49) suggests that the inquiry may not be so simple. The Court was reviewing the ALJ's decision in a private action brought by an injured party after OSC declined to file a complaint before an ALJ.(50) The ALJ in a summary decision(51) found that the Post Office's conduct in not hiring Tovar fell within the exception for citizenship status discrimination required by regulation.(52) Tovar was a temporary resident and the Post Office had promulgated a regulation limiting employment to citizens and permanent residents. Tovar appealed this decision to the Ninth Circuit.(53)
The Ninth Circuit refused to affirm the administrative decision stating, "the ALJ in this case granted summary judgement without a proper factual record i.e., a record sufficient to permit us to make the requisite evaluation of the reasonableness of the Postal Service's regulation . . . ." (54) The Court then remanded the case to the ALJ stating:In summary, we hold that Regulation 312.21 [limiting Postal Service employment by aliens to permanent residents] does not violate IRCA's statutory bar on unlawful discrimination. However, given Tovar's showing that the regulation served to preclude her employment based not on her individual qualifications but on her group status, we hold that the Postal Service has not offered sufficient facts to support a conclusion that, in adopting the regulation, it acted within its authority under the Postal Reorganization Act. Moreover, in light of the undeveloped state of the factual record, we are unable to conduct a proper review of the lawfulness of the Postal Service's regulation. Therefore the ALJ erred in granting summary judgement. Accordingly, we must vacate and remand for further proceedings.(55)This decision suggests that the mere existence of a legal requirement mandating citizenship status discrimination may not end the inquiry. One may have to look at the reasonableness of the requirement in light of whatever authority upon which it was based.
This is not a new concept. As early as 1989, it was suggested that citizenship status discrimination required by an unconstitutional state statute would not fall within IRCA's exception. However, the decisions considering the issue were somewhat equivocal(56) until Elhajomar v. City and County of Honolulu.(57) There the ALJ considered whether it was within his authority to determine whether a Hawaii statute limiting municipal employment opportunities to certain classes of aliens was constitutional. He stated:
. . . I conclude that, as a Department of Justice Administrative Law Judge, I do not have the authority to declare a state statute unconstitutional, and should therefore, consistent with the limitations of my role herein, conclude that the state is "entitled to a presumption of constitutionality."Even after Elhajomar, some administrative decisions suggest that ALJs have authority to consider some constitutional issues.(58) It remains to be seen what impact the Ninth Circuit's decision will have in this area.
While OSC has taken the position that citizenship status discrimination has to be legally required before IRCA's exception is called into play, it is unclear what happens when a treaty permits but does not require citizenship status discrimination. In 1991, the Seventh Circuit considered allegations of employment discrimination against Quasar, a division of the Matsushita Electric Corporation of America. The Court said:
The most important question is whether a claim of discrimination on the basis of national origin is tenable when, as in this case, the discrimination is in favor of foreign citizens employed temporarily in the United States in accordance with a treaty between the United States and Japan that entitles companies of each national to employ executives of their own choice in the other one.(59)
In discussing the Title VII implications of this question, the Court went on to state:That right would be empty if the subsidiary could be punished for treating its citizen executives differently from American executives on the ground that, since the former were of Japanese national origin and the latter were not, it was discriminating on the basis of national origin. Title VII would be taking back from the Japanese with one hand what the treaty had given with the other. This collision is avoided by holding national origin and citizenship separate. That was not done here.(60)The Court ignored IRCA's prohibition against citizenship status discrimination. Though the alleged discrimination occurred before IRCA's passage, it would seem to have been worth noting that the collision in the future can no longer be avoided and IRCA's exception for required citizenship status discrimination may not avoid it.
There is an additional exception to IRCA's prohibition against citizenship status discrimination. The antidiscrimination provision allows an entity to prefer to hire, recruit, or refer an individual who is a citizen or national of the United States over another individual who is an alien, if the two individuals are equally qualified.(61)3. What Is Prohibited Citizenship Status Discrimination?
A one to one comparison of citizen and noncitizen applicants for the job at issue is required by this exception. An employer cannot assume that all citizen applicants are as equally qualified as alien applicants. Therefore, the exception does not protect an employer who exhausts all citizen applicants before considering employment authorized alien applicants. As the ALJ stated in Mesa Airlines:The plain words of the exception are inescapable: the employer avoids liability for discrimination if, but only if, there has been a comparison of qualifications as the result of which the selected citizen is found to have qualifications not less than equal to the non-selected alleged discriminatee.(62)Once it is determined that an individual is protected from citizenship status discrimination, one has to be able to tell what it is. In its simplest terms, citizenship status discrimination is treating individuals differently because of their citizenship or immigration status. For example, an employer with a citizens-only hiring policy denies a non-citizen employment because of his/her citizenship. This is not national origin discrimination since the relevant characteristic used by the employer has nothing to do with whether an individual or his/her ancestors came from Mexico, Poland, Ireland, or any other country. Rather it has to do with what their immigration status is. Here an employer would hire a citizen, native-born or naturalized, of Mexican ancestry, but s/he would refuse to hire a permanent resident from Mexico. The relevant characteristic used to discriminate is citizenship status not national origin.(63) Similarly, an employer's refusal to hire a temporary resident, granted work authorization under the amnesty program, because she was not a permanent resident with a "green card" is citizenship status discrimination.(64)
An employer imposing more stringent requirements on citizens, permanent residents, temporary residents, refugees, or asylees seeking to be apple pickers than on those he seeks to employ on H-2A visas, would also constitute a difference in treatment based on citizenship status. Similarly, an employer seeking to hire individuals on H visas in lieu of protected individuals would constitute citizenship status discrimination.(65) An employer refusing to consider hiring non-citizens until the pool of citizen applicants is exhausted is discriminating on the basis of citizenship status.(66) Requiring aliens to show certain kinds of documents to establish identity or work authorization while allowing citizens to show any documents they want to is treating people differently because of their citizenship.(67) Limiting the number of citizens who can play on a football team is citizenship status discrimination.(68) When a Cuban defector, Rene Arocha, was initially denied the opportunity to participate in professional baseball until he became a permanent resident, he was being denied employment because of his citizenship status not because of his Cuban national origin.(69)C. Document AbuseThe Immigration Act of 1990 made a number of changes to IRCA's antidiscrimination provision. The most important substantive change that affected day to day employer behavior concerned what came to be called "document abuse."(70) The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) amended what constitutes document abuse. Unfortunately, the meaning of IIRAIRA's amendment is still unclear.
As originally enacted, an employer committed document abuse if s/he refused to accept any document or combination of documents, allowed by law, that an employee wished to present for employment verification, i.e., I-9 Form, purposes. It was unlawful for an employer to prefer one document over others for purposes of completing the I-9 Form. Specifically, it was unlawful for a person or entity to request, in order to satisfy I-9 Form requirements, more or different documents than are required to meet those requirements. It was also unlawful for a person or entity to refuse to honor, in order to satisfy I-9 Form requirements, legally acceptable documents tendered that on their face reasonably appear to be genuine. IIRAIRA added the requirement that for such actions to constitute an unfair immigration related employment practice they had to be done "for the purpose or with the intent of discrimination . . . ."(71) In order to gain some understanding of what document abuse may now mean, it is helpful to examine the history of the provision.1. Document Abuse Before the Immigration Act of 1990 Amendments
Soon after the passage of IRCA, OSC successfully argued that it was citizenship status discrimination for an employer to accept any of the legally acceptable documents from a citizen, but to specify that a protected alien(72) must show a specific document. In Marcel Watch, the ALJ stated:
Cavalier rejection of proffered documents and insistence on unnecessary ones (i.e., green cards), whether or not in a good faith effort to comply with Section 101, is no justification for disparate treatment of Puerto Rican-born U.S. citizens.(73)In DeWitt, a private action in which OSC intervened, an employer insisted that a U.S. citizen produce a birth certificate after he had already shown a social security card. The ALJ stated:The situation here is analogous to Marcel. Here, DeWitt discharges Jones because he could not produce his birth certificate as proof of United States citizenship where the documents already produced, i.e., a state identification card and a Social Security Card, satisfy the employment verification requirements of IRCA. An identification card is a List B document and establishes only identity. A Social Security Card is a List C document which establishes only employment eligibility. An employer satisfies its obligations under the employment verification system by examining both of these documents. A birth certificate being another List C document is redundant; its production, therefore, is unnecessary. Where, as here, the employee is found to have presented sufficient qualifying documents, the employer's insistence on a birth certificate, at risk of discharge, is per se a violation of the prohibition against citizenship discrimination.(74)However, because OSC was using IRCA's prohibition against citizenship status discrimination, before it could take action, the individual involved either had to be fired or not hired because of the employer's insistence on seeing a specific document. If the individual involved was not a citizen, the person was without a remedy unless s/he was a "protected individual", i.e., a citizen, permanent resident, temporary resident, refugee, or asylee. Under the law, as it then existed, employers could not be sanctioned unless their requests for specific documents resulted in a protected individual being fired or denied a job.
The original version of the I-9 work verification form issued by INS made clear that employers were to accept any of the legally acceptable documents which an employee might present when hired regardless of whether that individual was a citizen or a work authorized alien. The form also made clear that when it came time to reverify the continued work authorization of an alien because his/her work authorization had expired, that person had to present an INS issued document evidencing continued authorization to work.(75) When INS revised the I-9 Form in 1991, it made clear that aliens could provide any of the legally acceptable documents to establish work authorization at the time of reverification. This changed established practice.
Employers and employed aliens, up until the change in this version of the I-9 Form, accepted the need to establish continued work authorization after the expiration of a prior INS grant of work authorization. INS revised the form to make it more user friendly. Employers objected to having their employees redo the personal data portion of the form at the time of reverification, with all the possibilities of creating additional paperwork violations for which employers could be cited. Since the personal data remained the same, employers argued, with some merit, that all INS should be interested in was that the employee continued to have documents that showed work authorization. INS' fix resolved the problem, but set the stage for document abuse. No longer did employees have to redo the personal data section of the I-9 or to present again documents that established identity. Now all they had to do was present documents that established continued work authorization. However, an unrestricted social security card, i.e., one that did not state it was not for employment purposes, sufficed to show continued work authorization. Employers found this to be counter-intuitive. Why go to the trouble of updating an I-9 Form, when all an alien had to do to demonstrate continued work authorization was merely show the same unrestricted social security card they had shown previously.
In many cases, employers refused to believe this was what the law required. They asked to see an INS document evidencing that the employee's work authorization had in fact been extended as the employee had attested. This might have gone unnoticed except the Immigration Act of 1990 had amended IRCA's antidiscrimination provision to make it a violation for an employer to request more or different documents than were required to satisfy IRCA's employer sanctions provision, see 8 USC § 1324b(a)(6).2. Document Abuse after the Immigration Act of 1990
OSC took an aggressive posture in enforcing the new document abuse provision. With the codification of document abuse, OSC successfully argued that it applied not only to protected individuals, but to all work authorized aliens(76) and took the position that an employer, who committed document abuse, could be sanctioned even if the alien in question was hired.
The first case to interpret the new document abuse provision was United States v. Louis Padnos Iron & Metal Co.(77) In granting a motion for summary decision, the ALJ found that the document abuse provision was violated when the company discharged a permanent resident, to whom INS had not yet issued a permanent resident card, because of his inability to produce an extension of his temporary resident card. The company refused to accept any of the other legally acceptable documents under IRCA to prove work authorization when reverifying the employee's I-9 Form. The ALJ cited to the reasoning of both DeWitt and Marcel Watch. Padnos,(78) in rejecting the company's good faith defense. The ALJ also rejected the company's defense of estoppel. The company argued that it fired the injured party in reliance on information contained in INS's Handbook for Employers(79) and the alleged advice of a border patrol agent. The ALJ found "neither the regulations nor the pertinent wording in the Handbook for Employers are ambiguous concerning reverification."(80). As to erroneous advice from government agents, citing administrative decisions involving violations of IRCA's employer sanctions provisions, the ALJ stated that ". . . an [erroneous] oral representation by an INS agent does not establish an estoppel nor does it relieve the employer of liability [citation omitted]."(81)
Given its reliance on the rationale of Marceland DeWitt, Padnos could have been tried as a case of citizenship status discrimination and had the same result. However, it must be remembered that IRCA's citizenship status provision only applies to citizens, nationals, permanent residents, temporary residents, refugees, and asylees. The document abuse provision goes further. After analyzing the plain language of the statute, its legislative history, and various reports to Congress,(82) the ALJ in United States v. Guardsmark, Inc., (83) found, "that in order to fulfill Congressional intent, 8 USC 1324b(a)(6) [the document abuse provision] must be interpreted to prohibit document abuse against any work authorized alien."
It is interesting that as early as 1989, it had been suggested that a civil penalty might be assessed against an employer who refused to employ a work authorized alien who was not protected from citizenship status discrimination. In Mesa, supra. the ALJ stated:
. . . for purposes of pattern or practice liability, aliens (other than unauthorized aliens) "discriminated against," . . . [citation omitted] are not limited to those who have proven intending citizen [now protected individual] status. I have found that Martin Riebeling was not an intending citizen as that statutory term has been implemented by the Department of Justice; nevertheless, he was a qualified non-U.S. citizen applicant rejected by Mesa. In my judgement, it follows that there is power to assess a civil money penalty as to him.(84)Against this background, it is perhaps not so surprising that the ALJ inUnited States v. A.J. Bart assessed civil penalties against the company for violating both IRCA's citizenship status discrimination and document abuse provisions as to one individual and for engaging in a pattern or practice of document abuse concerning 102 individuals. The ALJ found the company committed citizenship status discrimination when it refused to accept any document but a birth certificate as proof of the work authorization of Romelia Colon, a U.S. citizen, and discharged her. The ALJ relied on the decision in DeWitt, supra.Bart.(85) He assessed a $350 civil penalty for this violation. The ALJ also found document abuse when the company refused to accept her offers to provide a U.S. passport or a Texas I.D. card; and instead requested that she furnish a driver's license for the purpose of establishing her identity and that she provide her Social Security card or birth certificate to establish her work authorization. He assessed a $350 civil penalty for the document abuse violation.(86) Finally, the ALJ found that A.J. Bart engaged in a pattern or practice of document abuse concerning 102 job applicants. He found that Bart's I-9 Form preparation practices depicted a discernible pattern of routinely requesting or demanding certain documents for I-9 Form purposes. For the pattern or practice violation, the ALJ assessed a civil penalty of $10,200.(87)
Asking for a specific document or documents to establish identity and/or work authorization for employment eligibility purposes can lead to hefty civil penalties. As mentioned, OSC takes the position that document abuse has occurred and civil penalties are assessable even if the individual involved did not suffer a loss of employment. As the ALJ said in Westendorf v. Brown & Root, "Section 1324b(a)(6) prohibits a potential employer from demanding any particular document to satisfy the employment eligibility requirements of 8 USC § 1324a(b)."(88)
The application of document abuse to all work authorized aliens enabled OSC to seek redress for those aliens who were work authorized and had in fact had their work authorization extended by INS, but where INS had not yet issued the appropriate documentation. As most INS practitioners are aware, this is not an uncommon situation. It seemed particularly unjust to allow employers to fire work authorized aliens because they could not produce a demanded INS card, which INS had not yet issued even though it had granted the work authorization - especially when the alien could provide other legally acceptable documents.
The Third Circuit Court of Appeals in a private action involving the document abuse provision appeared to agree. In Getahun v. OCAHO and DuPont Merck Pharm.,(89) the Court reversed and remanded an Administrative Law Judge's (ALJ) summary decision which had dismissed a document abuse case brought by an asylee who had been terminated from her employment because she could not present a current Employment Authorization Document (EAD). The ALJ had granted a summary decision because he found that the asylee, Dr. Getahun, was unauthorized to work because she did not have a current EAD.(90) The Third Circuit disagreed. While recognizing that it is required to give some deference to the ALJ's decision, it concluded, "No amount of deference . . . would permit the conclusion that an alien who had been granted asylum and who had applied for (but had not received) an EAD was not authorized to work." The Court reasoned that:
By the time Dr. Getahun's interim EAD expired in November 1991, her application for asylum had already been granted. By virtue of the grant of asylum her employment authorization was "automatically" granted or continued. There would have been no reason thereafter to apply for a replacement of her interim EAD when it expired the following month. The ALJ was clearly in error when he ruled that Dr. Getahun was not authorized to be employed because she "did not apply for or receive a replacement" interim EAD. Dr. Getahun argues with considerable persuasiveness that 8 CFR § 208.20 as it existed in 1991 was self-executing and that it provided employment authorization whether or not the asylee applied for a new EAD. [notes omitted](91)When her employer, DuPont Merck, during the course of an I-9 audit, discovered that Dr. Getahun's EAD had expired, it demanded additional proof of continued work authorization. She presented INS receipts evidencing that she had applied for a new EAD as well as permanent resident status, but her employer refused to accept them as acceptable proof. (92) The Third Circuit said that under the circumstances:DuPont Merck was fully authorized, in fact required, to question Dr. Getahun and seek supplemental documentation when, during the course of its 1993 audit, . . . it learned that the interim EAD pursuant to which she had been employed had expired in 1991. Dr. Getahun responded to these inquiries and produced documentation establishing that she was authorized to accept employment. The fact that DuPont Merck was performing its obligation to verify employment eligibility did not insulate it from a charge of document abuse. [emphasis added](93)The Court concluded that there were facts on the record that indicated that DuPont Merck had committed document abuse in violation of 8 USC § 1324b(a)(6). However, because it believed that OCAHO should address the issue in the first instance it reversed the ALJ's decision and remanded the case to OCAHO for reconsideration consistent with its opinion.(94)
When OSC was able to demonstrate to employers that it was a per se violation of IRCA's document abuse provision to demand more or different documents than necessary to establish identity and work authorization, regardless of whether the individual at issue was hired, it provided a powerful incentive for employers to learn what IRCA actually required. OSC encouraged this process by not sanctioning employers for document abuse if they voluntarily changed their practices to comply with the law and any victim of the policy was made whole, i.e., hired and payed applicable backpay. Only if OSC had to file an administrative complaint did it seek sanctions for document abuse and, even then, it was only for those individuals whom it could prove had been required to produce more documents than IRCA required or to show specific documents.
At some point, OSC appears to have altered its policy. It started fining all employers it discovered committing document abuse, regardless of whether they voluntarily changed their practices. In addition, OSC started seeking fines for all persons hired, assuming that document abuse had been committed unless an employer could demonstrate that it had not. Thus, an employer, who appeared to have a practice of requiring all alien employees to show an INS card for I-9 purposes, found himself being threatened with the maximum fines possible for every alien hired. If an employer hired 300 aliens, he could find himself threatened with a fine of $300,000.(95) This got an employer's attention! Unfortunately, since many employers maintained they violated the law out of ignorance, not malice, and that no one had been harmed, it also produced a certain amount of enmity especially if it could not be shown that anyone had lost a job because of the practice. In some respects, the policy seemed similar to an INS practice of seeking fines for I-9 Form paper work violations, even though no unauthorized workers had been hired.
One ALJ refused to find liability for document abuse where an employer asked for a specific document, but there was no showing that anyone was denied employment as a result. United States v. Zabala Vineyards.(96) The ALJ conceded that this result may conflict with the decisions in United States v. Strano Farms,(97) and A.J. Bart, supra. He distinguished them by pointing out in those cases a request for a specific document resulted in a job rejection. As to A.J. Bart, he states:
3. Document Abuse After the IIRAIRA AmendmentThat scenario [in A.J. Bart] is in contrast to Zabala where specification of certain documents accepted by the employer in order to verify employment eligibility was incidental to employment, not rejection.(98)As to Strano, he states:In Strano, the ALJ determined that otherwise valid employment documents tendered by applicants were rejected by the employer because only certain documents were accepted to verify employment. Unlike Strano, there is no suggestion on the present record that Zabala rejected documents offered by applicants, nor did it request additional or other documents than those proffered. Unlike Strano where the judge found that those aliens were asked for different documentation than was forthcoming from United States citizens, in the present case there is no evidence that any individual embraced by the Complaint was treated differently than any other job applicant.(99)Congress reacted by amending IRCA's document abuse provision in 1996. IIRAIRA provided that document abuse occurs only if the request for more or different documents than necessary to satisfy IRCA's employer sanctions provisions was "made for the purpose or with the intent of discrimination . . . ." Congress did not call into question the recognized applicability of the document abuse provision to all work authorized aliens.
At a minimum, it appears that document abuse is no longer as simple a violation to prove as it was prior to the IIRAIRA amendment. Something more has to be shown than the mere fact that an employer demands more or different documents than necessary. What that something more is, remains to be seen. It may mean nothing more than "document abuse" is right back where it was before Congress created the provision in 1990, i.e., if rejection of legally acceptable documents results in loss of a job, document abuse has occurred. After all, when this practice resulted in United States citizens being denied a job, this was found to have been intentional discrimination on the basis of citizenship status.(100) If that's the case, all IIRAIRA did was codify the position of the ALJ in Zabala. As the ALJ stated:
This case stands for the proposition that (a)(6) [IRCA's document abuse provision before the IIRAIRA amendment] does not intrude on hiring practices for purposes unrelated to overcoming discrimination in the workplace. Eliminating discrimination is what § 1324b, including subsection (a)(6) is all about. Section 1324b is an expression of national policy which addresses the evil of exclusionary hiring practices. No one was excluded here. To find liability on this record would not serve that national policy.(101)
Since the only documents newly arrived work authorized aliens, other than permanent residents, will be issued to demonstrate work authorization are those issued by the INS, the problem may solve itself. Most aliens will have nothing else to show but an INS issued document to satisfy I-9 Form requirements.
Congress could still make everyone's life a lot simpler by requiring that the only acceptable document all aliens, including permanent residents, can present to satisfy IRCA's employer sanctions provision is an INS issued document. It may also be possible for the Attorney General to accomplish the same result by specifying INS documents as the only acceptable ones work authorized aliens can present for I-9 Form purposes pursuant to her authority under 8 USC § 1324a(b). If this were done and INS could expeditiously issue such documents, the problem of document abuse could vanish.D. RetaliationOSC prohibited retaliation in its initial regulation. The ALJ in Southwest Marine, in a decision issued after the regulation was codified, found it to be "a valid regulation which does not exceed the authority of the statute", Southwest Marine,(102) (Regulation in existence since 1987 and codified in all material respects by the Immigration Act of 1990 was lawful exercise of the Attorney General's authority). However, it was unclear whether the civil penalties authorized by statute for immigration related unfair employment practices would apply to retaliation prohibited by regulation.(103)
The Immigration Act of 1990 codified the regulation and made retaliation a new unfair immigration related employment practice.(104) It is now an unfair practice for a person or entity to intimidate, threaten, coerce, or retaliate against individuals for the purpose of interfering with any right or privilege secured by the antidiscrimination provision; because an individual intends to file or has filed a discrimination charge or complaint; or because an individual testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the antidiscrimination provision.
Whether an employer unlawfully retaliated against an individual does not depend on the merits of any underlying charge. OSC has filed complaints and settled retaliation charges where it declined to file a complaint before an ALJ concerning the original discrimination charge. The ALJs again look to Title VII precedent to determine how to prove retaliation. This was recognized by the ALJ in Yefremovwhen he stated it was understood that:
IV. HOW TO PROVE A VIOLATIONThe order and allocation of burdens of proof in retaliation cases follow that of general disparate treatment analysis as set forth in McDonnell Douglas Corp. v. Green [citations omitted] and Texas Dep't of Community Affairs v. Burdine [citations omitted].(105)
Cases of national origin or citizenship status discrimination under IRCA have alleged that a company intentionally discriminated against an individual or intentionally engaged in a pattern or practice of such conduct. All ALJs considering the issue have looked to Title VII case law for guidance on how to prove an intentional or disparate treatment case of discrimination.
A. Application of Title VII Disparate Treatment AnalysisAs the ALJ in Marcel Watch stated, "Title VII disparate treatment jurisprudence provides the analytical point of departure for Section 102 cases." Marcel Watch, 1 OCAHO 143 at 1001.B. Legal Standards for Proving a Violation
In Hensel v. Oklahoma City Veterans Affairs Med. Ctr., the ALJ concisely set forth the legal standards for proving a discrimination charge under IRCA. He stated:
An allegation of discrimination may be proven by a showing of deliberate discriminatory intent on the part of an employer, regardless of the employer's motive. Klimas v. Department of Treasury, 3 OCAHO 419, at 15. Discrimination or disparate treatment exists where an employer treats certain individuals less favorably than others because of their race, color, religion, sex, national origin or citizenship status. United States v. Sargetis, 3 OCAHO 407 at 25 (3/25/92).
* * * * *
The Supreme Court established the order and allocation of proof to be used in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 192 (1973), holding that the individual alleging discrimination in employment must first establish a prima facie case . . . by showing:
"(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications."
[citations omitted]. . . . The burden of production then shifts to the employer to rebut the presumption of discrimination. [citations omitted]. . . . The employer can meet its burden by disputing the plaintiff's facts or by articulating nondiscriminatory reasons for the disparity of treatment. [citations omitted]. Employer's articulation of those reasons must be "clear and reasonably specific." [citations omitted].
Should the employer meet this burden of production, the claimant is then to be given the opportunity to prove by the preponderance of the evidence that the reason offered by the employer was a mere pretext for discrimination, i.e., the proffered reasons were not the true reasons for the hiring decision. [citations omitted]. This burden merges with the ultimate burden of persuading the court that the plaintiff has been the victim of intentional discrimination. [citation omitted] . . .(106)The ALJ decisions since St. Mary's Honor Ctr. v. Hicks,(107) variously describe its effect on the McDonnell Douglas framework as either "modifying" or "clarifying" it. The ALJ in Jimmy-Jack Jackai v. Dallas County-Data Services states that it "modified the McDonnell Douglas framework. He described Hicks as a case:
involving indirect, or circumstantial, evidence of discriminatory intent, that a discharged plaintiff alleging racial discrimination is not entitled to judge as a matter of law after proving that all of the defendant's reasons were merely pretextual and that in order to prevail the plaintiff therein was further required to bear the ultimate burden of persuasion of showing that the defendant therein had intentionally discriminated against him based upon his race.(108)
The ALJ in Kamal-Griffin v. Cahill Gordon & Reidel points out that the McDonnell Douglas/Burdine framework has been "clarified" by Hicks. In assessing the effect of Hicks, he stated:
The plaintiff may carry this burden "'either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 . . . The Court in Hicks, however, clarified that the district court's rejection of the defendant's asserted reasons permits, but does not compel a finding of intentional discrimination. Hicks, 113 S.Ct. at 2749.(109)
The McDonnell Douglas/Burdine framework is not the only method for proving a case of intentional discrimination. As the ALJ in Henselpointed out:
Where there is direct evidence of employer discrimination, however, a different analysis is used. [citations omitted].
As the administrative law judge noted in United States v. Marcel Watch Corp., [citation omitted]:
In a case where the complainant has presented substantial direct evidence of discrimination the complainant may not be required to show that the employer's reason was pretextual. The direct evidence alone can establish that discrimination was a significant factor in the employment decision.
C. Difference Between Intent and Motivation[citations omitted]. When direct evidence precludes use of the McDonnell Douglas/Burdine framework, Thurston permits the employer to attempt to prove an affirmative defense to its discriminatory practice. Thurston, 469 U.S. at 122. [citations omitted].(110)In considering whether a case of discrimination is intentional, it is important to differentiate between intent and motivation. For example, it is often assumed that to prove a case of intentional citizenship status employment discrimination, one must prove that the employer took the actions s/he did because of a dislike or animus toward the injured party based on his/her citizenship status. This assumption is false. All one has to prove is that the employer intended to treat the injured party differently because of his citizenship status and this difference in treatment, i.e., disparate treatment, resulted in an outcome prohibited by the statute. The ALJ in Southwest Marine discussed the nature of the difference. She stated:
Respondent argues that its sole intent was to comply with Navy regulations, not to discriminate against its non-citizen employees because of their citizenship status. This is sophistry. There is no contention or evidence that Respondent harbored any animus towards Miranda [the injured party]. Nor can I find anything in the statutory language, legislative history or case law that appears to suggest animus as a required element of a violation. Although evidence of animus is often important in determining concealed motivation, it is irrelevant here.
Respondent's conduct was quite straightforward. Its motivation was neither concealed nor mixed. Quite simply, Respondent refused to recall Miranda solely because he was not a U.S. citizen. If such conduct is not unlawful, it is not because the discrimination was not based on citizenship status; but rather, because the discrimination is not proscribed since it falls into one of the three exceptions of Section 1324b(a)(2).(111) .
It is unfortunate that the ALJ used the term "motivation" as she did because it is the one element in the discussion that causes conceptual confusion. What appears to be meant is that the respondent's intention was neither concealed nor mixed. The respondent refused to recall Miranda solely because of his citizenship status. The respondent may have been motivated to do this by its desire to comply with Navy regulations, but that is irrelevant here unless the Navy regulations required such conduct and thus fell into one of IRCA's three exceptions for citizenship status discrimination.
The ALJ in DeWittaddresses this point when he states:
Employment discrimination jurisprudence based on Title VII . . . turns on whether an employer who intentionally treats persons differently on a prohibited basis violates antidiscrimination laws, regardless of what motivates that intent. Disparate treatment is found when an employer intentionally treats some people less favorably than other because of their status.(112)As the ALJ in Marcel Watch stated:
Employment discrimination jurisprudence turns on the basic question whether an employer who intentionally treats persons differently on a prohibited basis violates antidiscrimination laws, regardless of what motivates that intent. Disparate treatment exists when an employer intentionally treats some people less favorably than others because of their group status [citations omitted]. Disparate treatment is precisely what the antidiscrimination provisions of IRCA sought to remedy .(113)Perhaps the ALJ in United States v. General Dynamics put it most succinctly when he stated:
It is not Respondent's motive, however, but its intent which is at issue. [citations omitted] I therefore need to decide only whether Respondent deliberately committed a discriminatory act, not whether the violation of the law was deliberate or the result of Respondent's invidious purpose or hostile motive. [citation omitted].(114)
This is an important distinction to remember for it eliminates much conceptual confusion concerning intentional discrimination. For example, it is not necessary to prove that the alleged discrimination was in any way tied to or motivated by a fear of violating IRCA's employer sanctions provisions to prove a discrimination violation. The first case OSC brought before an ALJ alleged that Mesa Airlines had a policy of preferring to hire United States citizen pilots over more qualified work authorized alien pilots.(115) It was undisputed that this policy predated the 1986 enactment of IRCA. Mesa argued that since its policy predated IRCA, it could not have been motivated by a fear of its employer sanctions provisions. In response, the ALJ stated:
Nothing contained in the unusually structured statutory mechanism for legislative inquiry into the continued viability of either employer sanctions or antidiscrimination provisions [citations omitted], spells out or necessarily implies a requirement that causes of action arising under section 1324b [IRCA's antidiscrimination provision] must proximately result from enactment (or, implementation) of section 1324a [IRCA's employer sanctions provision]. Nothing constrains me to look behind a remedial statute for a limitation that would be inconsistent with the plain words of the statute, 8 USC §1324b(a)(1), or included within the catalogue of exceptions to its sweep, 8 USC §§1324b(a)(2) and (4). For all the foregoing reasons, I conclude that 8 USC §1324b confers jurisdiction upon administrative law judges to adjudicate complaints whether or not the alleged discriminatory practices implicate either the text or the administration of 8 USC § 1324a.(116)
With an understanding of these antidiscrimination basics, we can now examine how Section 102 affects the H visa process.V. SECTION 102 AS A TOOL TO COMBAT ANTI-IMMIGRANT FEARS
Since most of the cases involving IRCA's prohibition against citizenship status discrimination involve permanent residents, temporary residents, asylees and refugees, it is worth reiterating that IRCA protects "U.S. workers", i.e., citizens, as well as permanent residents, temporary residents, asylees, and refugees from such discrimination. As the ALJ pointed out in Yefremov v. NYC Dep't of Transp.:
OCAHO cases have addressed the liability of employers for discriminatorily failing to hire or for discharging U.S. citizens to the advantage of non-citizen employees [citations omitted]. Although no such case has yet found liability, it is well settled that a factual scenario may develop where an employer will be found to have discriminated against a U.S. citizen in favor of a non-citizen. [citations omitted].(117)It is this symmetry, i.e., the protection of both citizens and authorized aliens from citizenship status discrimination, that potentially makes the antidiscrimination provision a valuable tool in demonstrating that fears against legal immigration are unwarranted. By utilizing the provision to protect U.S. citizens from unlawful discrimination in favor of aliens, a mechanism is set in place that puts the purveyors of immigrant bias to the test. If employers are unlawfully hiring legal aliens over citizens, that is citizenship status discrimination and Section 102 provides a remedy. If such allegations cannot be proven, it is a demonstration that the fear that legal immigration is depriving citizens of employment is untrue. In addition, this view of Section 102 helps build a public consensus for all of OSC's activities, 99% of which historically involve allegations of employment discrimination against work authorized aliens. It should help the voting public understand they have as much at stake in OSC's activities as work authorized aliens do.
OSC has brought a number of cases before ALJs alleging that employers have unlawfully favored aliens in various temporary nonimmigrant visa categories over U.S. workers. In United States v. McDonnell Douglas, OSC alleged that the McDonnell Douglas Corporation engaged in a pattern or practice of employment discrimination with respect to its hiring of jig and fixture builders for its contract with the Air Force to construct C-17 aircraft. OSC also alleged that qualified U.S. workers, who applied as jig and fixture builders, were rejected by the respondent while it obtained labor certification for workers from the United Kingdom. The company obtained these workers using the H-2B visa process. See United States v. McDonnell Douglas,(118)
In moving to have the complaint dismissed, the respondent argued, among other things, that the complaint was an attack on the H-2B visa process.(119) To maintain such an attack, the respondent asserted it was necessary for the complaint to allege fraud. Since the complaint did not allege fraud, the respondent argued, it should be dismissed. In addition, the respondent maintained that if fraud was committed during the certification process, it operated against the Department of Labor (DOL) and/or INS, and not against the U.S. workers alleged to be injured here. Thus, the respondent concluded any allegations of misrepresentation were not triable in an IRCA forum.
The ALJ denied the motion to dismiss. He found that the issues here were no different than those in any other citizenship status complaint. He stated:
Whether or not Respondent acted properly in pursuit of this certification does not really change the nature of the action. Complainant must still bear the burden of proving that discrimination existed in the failure to hire these 22 individuals. The use of the H-2B program by Respondent is not the primary focus in that proof . . . . (120)
In focusing on the allegations of citizenship status discrimination, the ALJ concluded:Whether respondent went about its recruitment and application activities under the H-2B program properly or improperly does not appear to affect the underlying issue at hand. My understanding of the case, in its simplest terms, is that Complainant alleges a preference on the part of Respondent for foreign workers. This preference caused Respondent to hire U.K workers at the same time it was rejecting U.S. applicants who sought jig and fixture positions. Just how Respondent went about this hiring of foreign workers does not appear to be a central issue in this case. Complainant's burden is simply to prove that the preference existed and that discrimination of U.S. workers occurred as a result. Similarly, Respondent's defense does not appear to hinge on whether it went about its application process correctly.(121)
Subsequent to this decision, OSC has investigated allegations of citizenship status discrimination involving the H-2A visa program. During an independent investigation conducted by OSC,(122) the Carolina Employers Association (CEA) moved to quash a subpoena(123) arguing:
that OSC lacks subject matter jurisdiction over the H-2A violations of the Immigration and Nationality Act (INA) which OSC is investigating, because the H-2A provisions of INA apply to temporary foreign agricultural workers over which and whom the Department of Labor (DOL) has exclusive investigative jurisdiction. CEA also contends that the H-2A 50% rule[(124)] violations for which it has been cited by DOL, and for which CEA has paid a $500 civil penalty, do not constitute unfair immigration-related employment practices over which, it concedes, OSC does have exclusive enforcement jurisdiction.(125)
The ALJ noted that "OSC countered this objection by averring that it is not investigating H-2A violations and points out that petitioner's assertion that the fact that petitioner's hiring and recruitment process is controlled in part by DOL's H-2A regulations does not limit OSC's investigatory authority under IRCA." The ALJ concluded:
Petitioner's argument is without merit. Under IRCA, OSC is tasked with investigating allegations of unfair immigration-related employment discrimination. 8 USC §1324b(d). It is true, as petitioner asserts, that the OSC's investigatory jurisdiction is not unlimited, and that IRCA specifically exempts from the definition of "unfair immigration-related employment practice" discrimination which is based upon citizenship status which is otherwise required in order to comply with law, regulation, or executive order, or required by Federal, State, or local government contract, or which the Attorney General determines to be essential . . . . Because these factual scenarios are inapplicable under the facts at issue, that argumentation does not constitute a valid objection to enforcement of the OSC subpoena under consideration.(126)
OSC's most ambitious effort in this area was its action against the General Dynamics Corporation (GD). The case alleged that General Dynamics contracted with Falcon International and its subsidiary GK Industries (Falcon/GK) to provide contract British jig and fixture workers on temporary nonimmigrant visas(127) in violation of IRCA's prohibition against citizenship status discrimination.(128) As characterized by the ALJ:
OSC's theory of discrimination is that from March to September 1990, GD maintained a policy of knowingly and intentionally preferring to hire individuals whom GD understood to be British workers on temporary work visas [footnote omitted] as contract jig and fixture workers, while rejecting qualified U.S. workers. [the ALJ noted that "U.S. workers" are individuals protected against citizenship status discrimination under IRCA].(129)
He viewed OSC as contending that:
[GD's] true motive in entering into the Contract is captured by the [contract] Proposal [appendix omitted], which explains the dilemma of companies such as [GD] who only need these workers "for a finite period of time." As the Proposal elaborates the challenge is guaranteeing that the company can keep the workers while it needs them without having them run off to another company, or to a technical service firm who will pay them more. The solution of many companies, says the Proposal, has been to get foreign labor especially foreign labor from the United Kingdom. And one of the great advantages to this, according to the Proposal, is that it solves the problem of worker mobility because the foreign workers "are basically indentured to the company(s) sponsoring their employment tenure." (130)
In essence, OSC alleged that General Dynamics reserved a fixed number of jig and fixture worker jobs for individuals on temporary nonimmigrant visas regardless of whether there were qualified U.S. workers available. In fact the ALJ found that Falcon/GK contract excluded U.S. workers from consideration and General Dynamics knew it.(131) He further found:
. . . that GD's failure to select a single U.S. jig and fixture builder until it has obtained all 25 British citizen workers when more than 25 qualified U.S. workers were available, establishes an inference that GD intentionally discriminated based on citizenship status. In addition, I find, based on the fact that during the span of several months in 1990, Respondent hired a grossly disproportionate number of non-U.S. worker applicants than U.S. worker applicants pursuant to a contract which Respondent subsequently renewed, along with the fact that qualified U.S. workers were available, to make a prima facie case of a pattern and practice of discrimination based on citizenship status.(132)
OSC ultimately did not prevail in this action because the ALJ found that General Dynamics had legitimate nondiscriminatory reasons for its conduct. While there were numerous subsidiary arguments,(133) as to OSC's primary allegation that a fixed number of jig and fixture jobs were reserved for individuals on temporary nonimmigrant work-related visas regardless of the availability of qualified U.S. workers, the ALJ concluded:
. . . I find that resumes of U.S. workers were not reviewed and their qualifications were not compared to those of Falcon/GK workers. I further find, however, that Respondent's failure to do so does not demonstrate an intent to discriminate based on citizenship status. Rather, I find that the Falcon/GK contract was a unique procurement sought for legitimate business reasons. Furthermore, I find credible Respondent's statement that the only reason "'qualified' B&M or ITS workers [(134)] were knowingly rejected' over the period of a few months at issue was the company's failure to consider their resumes due to "the unusually frantic press of business."
In summing up his decision, the ALJ concluded:I find that it was legitimate for GD to prefer the Falcon/GK workers over U.S. workers because I find that the Respondent did not consider the citizenship status of the workers in deciding to hire them as contract jig and fixture workers. [footnote omitted]. (135)* * * * *
Finally, OSC contends that:
[t]he fact that [GD] chose to engage in this discriminatory conduct through a contract should not, and does not, insulate it from having engaged in an unlawful pattern and practice of discrimination. Finding otherwise sets forth a road map by which all companies so inclined can employ individuals "indentured to the company" to the exclusion of U.S. workers with impunity.
While I can conceive of a situation in which an employer's use of a contract for contract labor could be the basis for a finding of a policy of intentional discrimination, I do not find such circumstances in this case.(136)
The ALJ denied General Dynamics' request for attorney's fees. General Dynamics appealed. The 9th Circuit Court of Appeals found that IRCA had not waived sovereign immunity and that the United States was immune from a claim for attorney's fees. General Dynamics Corp. v. United States.(137) The United States did not pursue an appeal.
Numerous ALJ decisions suggest that, in appropriate circumstances, it is citizenship status discrimination to prefer temporary nonimmigrant foreign labor over available and qualified U.S. workers. Even General Dynamics suggests such circumstances could exist. If that is so, IRCA's prohibition against citizenship status discrimination provides a vehicle for preventing the "job stealing" that those opposed to such programs suggest is a problem. Vigorous enforcement, not immigration restrictions, should provide an adequate remedy.
If an employer does not have a preference for foreign workers over qualified and available U.S. workers protected from citizenship status, there is no conflict with these programs. Most of them already require employers to certify to the lack of availability of U.S. workers. What IRCA's antidiscrimination provision does is provide a remedy to those discriminated against when the practice does not conform to the promise. And as an important byproduct, it defuses the argument that these programs need to be limited.
After General Dynamics, it remains to be seen whether the tool provided by IRCA's antidiscrimination provision lives up to its potential. Since OSC's merger into the Civil Rights Division, there appears to have been a hiatus in using Section 102 against unscrupulous employers who discriminate among aliens or between work authorized aliens and citizens. Whether it can still happen remains to be seen.
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* Andrew Strojny practiced law in Washington, D.C. with the federal government. During his career he has worked at the Department of Justice, the Office of Management and Budget, and the Environmental Protection Agency. He was named by the President to serve as the Acting Special Counsel for Immigration Related Unfair Employment Practices, a position he held from 1989 to 1992. The views expressed in this paper are his own and do not purport to represent the views of any federal agency.
This is a substantially revised, updated, and expanded version of an article that originally appeared in II American Immigration Lawyers Association, 1993-1994 Immigration and Nationality Law Handbook, 455-69 and, in an updated and revised form, in 10 Georgetown Immigration Law Journal 371, 384-89 (Spring, 1996). It also incorporates material that originally appeared in the Spring 1997 edition of The Green Card, a newsletter published by the Immigration Law Section of the Federal Bar Association, and in 75 Interpreter Releases 157 (Feb. 2, 1998).
1. The Farm Labor Contractor Registration Act (FLCRA), which was enacted in 1963, and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), which replaced FLCRA in 1983, subjected employers of illegal immigrants in specified agricultural activities to penalties. This MSPA provision was repealed by IRCA, which has its own sanctions scheme, one of graduated penalties for repeat violators. See J. R. Fraser, Migration and International Co-operation Challenges for Oecd Countries - Controlling Migration Flows - Practical Control Measures to Fight Against the Employment of Illegal Immigrants and the Sanctions Taken Against Their Employers, Lessons from Immigration Law Reform in the United States, Jan. 1993, a paper presented to the Organization For Economic Co-Operation and Development at its March, 1993 meeting in Madrid, Spain.
2. The H visa program concerns the admissions of nonimmigrants into the United States as temporary workers. For an interesting discussion of how the H visa program works as well as recommendations for change, see Demetrios G. Papademetriou and Stephen Yale-Loehr, Balancing Interests: Rethinking U.S. Selection of Skilled Workers, Migration Policy Program, Carnegie Endowment for International Peace 81-82 (1996).
3. Executive Summary of Labor Department Inspector General Audit Of Employment-Based Permanent and Temporary Labor Programs, 72 DLR E-9, Apr. 15, 1996.
4. Use of the term "Americans" or "U.S. workers" need not be taken as xenophobic. In an immigration employment context "Americans" is commonly used as a synonym for the term "U.S. workers." U.S. workers are defined by Department of Labor regulations to be coextensive with those individuals protected from citizenship status discrimination by IRCA's antidiscrimination provision, i.e., citizens, permanent residents, temporary residents, refugees, and asylees. See 8 USC § 1324b(a)(3) and, for example, 20 CFR § 656.3.
5. 72 D.L.R. AA-1 - 2, Apr. 15, 1996.
6. Marcel Watch, 1 OCAHO 143 at 990-991 (1990).
7. Id. at 1592. See 8 U.S.C. §§ 1324a(a)(1)(A) and 1324a(a)(2).
8. See generally 8 USC § 1324b(a)(1).
9. 8 USC § 1324b(a)(6).
10. 8 USC § 1324b(a)(4).
11. 8 USC § 1324b(a)(1)(A). See Brooks v. Watts Window World, 3 OCAHO 558 at 1535 (1993)(for protection from national origin discrimination it is immaterial whether a work authorized alien is an individual protected from citizenship status discrimination).
12. 8 USC § 1324b(a)(2)(A).
13. 8 USC §§ 1324b(a)(2)(B) and 1324b(b)(2).
14. 42 USC § 2000e(b). See Cascante v. Kayak Club, 1 OCAHO 223 at 1493 (1990); Ryba v. Tempel Steel, 1 OCAHO 289 at 1925 (1991).
15. Title VII prohibits discrimination in the terms and conditions of employment as well as hiring, firing, and recruitment or referral for a fee.
16. See United States v. Marcel Watch, 1 OCAHO 143 at 999; Huang v. United States Postal Serv., 2 OCAHO 313, 1991 OCAHO LEXIS 29 (1991), aff'd Huang v. United States Dep't of Justice, 962 F.2d 1 (list) (2d Cir. 1992); Morales v. Cromwell's Tavern Restaurant, 3 OCAHO 524 at 1264-65; Mir v. Federal Bureau of Prisons, 3 OCAHO 510 at 1083-84 (1993); Yefremov v. New York City Dep't of Transp., 3 OCAHO 562 at 1562 (1993); Alvarez v. Interstate Highway Constr., 3 OCAHO 430 at 403-4, 1991 OCAHO LEXIS 30 (1992); Brown v. Baltimore City Sch., 3 OCAHO 480 at 835 (1992); Salazar-Castro v. Cincinnati Pub. Sch., 3 OCAHO 406 at 90-91, 1992 OCAHO LEXIS 6 (1992).
17. See 8 USC § 1324b(b)(2).
18. 8 USC § 1324b note.
19. Hensel v. Office of Chief Administrative Hearing Officer, 38 F.3d 505 at 509 - 510 (10th Cir. 1994)..
20. See Roginsky v. Department of Defense, 3 OCAHO 426 (1992) and Mir v. Bureau of Prisons, 3 OCAHO 510 (1993).
21. 8 USC § 1324b(d)(2). The statute does not appear to make any distinctions between the remedies available to the United States and the remedies available to a private litigant. For example, a private litigant can obtain back pay, instatement or reinstatement, and civil penalties payable to the Treasury just as the United States can. see 8 USC §1324b(g)(2)(B)(iii) and (iv). However as of this writing, the author is aware of no private litigant who has prevailed in an action OSC has declined to participate in.
22. If OSC does file an administrative complaint, the charging party is considered a party to the complaint by operation of law. 8 USC § 1324b(e)(3).
23. Added to this 210 day period is the time for the charging party to receive notice, i.e., mail time, that OSC is not filing a complaint. 8 USC § 1324b(d)(2). OSC may also file a complaint during the charging party's 90 day filing period. 8 USC § 1324b(d)(2). However, OSC may not be able to avail itself of this "mail time". In United States v. Workrite Unif. Co., 5 OCAHO 736 (1995), the ALJ denied use of "mail time" in calculating whether an OSC complaint was timely filed reasoning:
As such, OSC would be free to tarry before notifying a charging party of its intent to file (or not to file) a complaint, thereby indefinitely and ambiguously tolling the 90-day limitation period in perpetuity.Id. at 112.
24. Hensel v. Oklahoma City Veterans Med. Ctr., 3 OCAHO 532 (1993).
25. Hensel, supra. at 508-509.
26. Any national origin claim would be litigated under Title VII.
At least one ALJ was concerned enough about the applicability of the Eleventh Amendment to a private action that he asked the parties for comment on the issue, see Robinson v. New York State Family Court, 5 OCAHO 814 (1995).
A discussion of Eleventh Amendment immunity as it applies to Federal government suits against a state is beyond the scope of this article. However, if the reader would like a starting point, the discussion in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114 (1996) may be helpful.
27. Section 412 reads in relevant part:
(d) Clarification of Application to Federal Government.Section 274A(a) (8 USC 1324a(a)), as amended by subsection (b), is amended by adding at the end the following new paragraph: "(7) Application to federal government.For purposes of this section, the term 'entity' includes an entity in any branch of the Federal Government."The Immigration and Naturalization Service (INS) has proposed regulations incorporating this amendment, see 63 Fed. Reg. 5287, 5302 (Feb. 2, 1998).
28. 8 USC § 1324b(a)(1)(B).
29. It is possible for the same set of facts to give rise to a violation of IRCA's prohibition against citizenship status and Title VII's prohibition against national origin discrimination. For a large employer, OSC would have jurisdiction over the citizenship status violation and EEOC would have jurisdiction over the national origin violation. See Romo v. Todd Corp., 1 OCAHO 25, 1988 OCAHO LEXIS 2 (1988), aff'd sub nom. United States v. Todd Corp., 900 F.2d 164 (9th Cir. 1990); Marcel Watch, 1 OCAHO 143 at 999-1001; Ekunsumi v. Hyatt Regency Hotel of Cincinnati, 1 OCAHO 128, 1990 OCAHO LEXIS 26 (1990); Alvarez v. Interstate Highway Constr., 3 OCAHO 430 at 404-5; Halim v. Accu-Labs Research, 3 OCAHO 474 at 777-78; 1992 OCAHO LEXIS 64 (1992).
30. United States v. Southwest Marine, 3 OCAHO 429, Appendix A at 392-93, 1992 OCAHO LEXIS 29 (1992).
31. See Munoz v. Pastel Furniture Mfg. Co., 3 OCAHO 457 at 623 (1992) (Allegations of citizenship status discrimination based on salary increases and working hours are not actionable under IRCA) and United States v. McDonnell Douglas, 2 OCAHO 351 at 372 (1991).
32. 8 USC § 1324b(a)(3)(A). For cases involving citizens, see Marcel Watch, 1 OCAHO 143; Jones v. DeWitt Nursing Home, 1 OCAHO 189, 1990 OCAHO LEXIS 78 (1990), appeal withdrawn, Nos. 90-4104, 90-4120 (2d Cir. 1990); United States v. McDonnell Douglas, 2 OCAHO 351, 1991 OCAHO LEXIS 70 (1991).
33. See 8 USC § 1324b(a)(3)(B).
34. For cases involving permanent residents, see United States v. Mesa Airlines, 1 OCAHO 74, 1989 OCAHO LEXIS 15 (1989), appeal dismissed as untimely, 951 F.2d 1186 (10th Cir. 1991); Southwest Marine, 3 OCAHO 429, Appendix A, 1992 OCAHO LEXIS 29 (1992).
35. An applicant for temporary residence is deemed a temporary resident from the date of application, if it is approved, 28 CFR § 44.101(c)(2). For cases involving temporary residents, see United States v. Lasa Mktg. Firms, 1 OCAHO 141, 1990 OCAHO LEXIS 12 (1990).
36. Several Federal agencies have amended their regulations as they apply to legal aliens to make them consistent with IRCA's definition of protected individual, see, for example, the Federal Register publications of the Bureau of Export Administration, Department of Commerce, 61 Fed. Reg. 12805 (Mar. 25, 1996) (regarding 15 CFR § 744.6(c)(1), definition of U.S. person); Bureau of Political-Military Affairs, Department of State, 59 Fed. Reg. 25811 (May 18, 1994) (regarding 22 CFR §§ 120.15 and 120.16, definitions of U.S. person and foreign person); and Employment and Training Administration, Department of Labor, 59 Fed. Reg. 874 (Jan. 6, 1994) (regarding 20 CFR § ___.302, definition of U.S. worker).
37. 8 USC § 1324b(a)(3)(B).
38. Southwest Marine, 3 OCAHO 429, Appendix A at 396.
39. 3 OCAHO 497 (1993)
40. See 8 USC § 1427(a). If permanent resident status is gained through marriage to a U.S. citizen, the alien may apply for naturalization after three years. See 8 USC § 1430(a).
41. Id. at 990
42. Id. at 981, n. 3.
43. Id. at 992-93.
44. 8 USC § 1324b(a)(2)(C).
45. 8 USC § 1324a et seq.
46. Marcel Watch, 1 OCAHO 143 at 1011 (note omitted); see also DeWitt, 1 OCAHO 189 at 1250-1253.
47. Southwest Marine, 3 OCAHO 429 at 361. In considering the applicability of a government instruction concerning the regulation, the ALJ stated:
Similarly, it was quite clear that the implementing NAVSEAINST 5500.3 was not to be immediately enforced. . . . Faced with these conflicting requirements, a reasonably prudent business person would have made an inquiry as to exactly how NAVSEAINST 5500.3 was being implemented. This Respondent failed to do. It is apparent from the record that if appropriate inquiries had been made, Respondent would have learned that NAVSEAINST 5500.3 was not being enforced while an ACP [Access Control Plan] was pending approval or modification for resubmission following disapproval. In these circumstances, I find that Respondent's failure to recall Miranda [the injured party] was not protected by Section 1324b(2)(C) of the Act. (Southwest Marine, 3 OCAHO 429 at 361.)Complicating the issue was the fact that:
it is undisputed that 32 CFR § 765.5(c), upon which Respondent bases its government law and regulation arguments, was promulgated by the Department of Navy in 1966, but never enforced prior to 1985. Further, the provision was removed from the Code of Federal Regulations in 1986, well before the discrimination herein.Id. at 346.
48. See "Office of Special Counsel for Immigration Related Unfair Employment Practices," 25th Annual Immigration and Naturalization Institute Handbook, H4-5140, Practising Law Institute, November-December 1992, at 186.
49. 3 F.3d 1271 (9th Cir. 1993).
50. See 8 USC § 1324b(d)(2).
51. A summary decision in this context is the administrative equivalent of a summary judgement in a judicial context.See 28 CFR § 68.38.
52. Tovar v. United States Postal Serv., 1 OCAHO 269 (1990)
53. See 8 USC § 1324b(i).
54. Tovar, 3 F.3d at 1279.
55. Id. at 1282.
56. See Sosa v. United States Postal Serv., 1 OCAHO 115 at 761-762 (1989).
57. 1 OCAHO 246 (1990)
58. See for example, Tovar, 1 OCAHO 269 at 1730.
59. Fortino v. Quasar, 950 F.2d 389, 391 (7th Cir. 1991) (emphasis in the original).
60. Id. at 393.
61. 8 USC § 1324b(a)(4). Though not explicitly stated, it is presumed that the alien in question must be work authorized since the purpose of IRCA's employer sanctions provision is to require employers to discriminate against aliens who are not employment authorized.
62. Mesa Airlines, 1 OCAHO 74 at 496.
63. See Espinoza v. Farah Mfg., 414 U.S. 86 (1973) and the discussion in Lardy v. United Airlines, 4 OCAHO 595 (1994).
64. See United States v. Lasa Mktg. Firms, 1 OCAHO 141 (1990).
65. United States v. McDonnell Douglas, 2 OCAHO 351 at 373-74 (1991); Yefremov v. New York City Dep't of Transp., 3 OCAHO 562 at 1593, but see United States v. General Dynamics, 3 OCAHO 517 (1993).
66. See Mesa Airlines, supra.
67. See generally, Marcel Watch, supra. and DeWitt, supra.
68. It was because of IRCA's antidiscrimination provision that Canadian Football League Teams located in the United States will not limit the number of players who are U.S. citizens, because of their status as U.S. citizens. See "Advantage Sacramento," 78 Sports Illustrated No. 15 at 10 (Apr. 19, 1993).
69. See "Play Ball! Baseball Teams to Make Pitch for Star Cuban Player," 68 Interpreter Releases 1199 (Sept. 16, 1991).
70. The term "document abuse" originated with the Immigration Act of 1990. Section 535(a) of the Act added a new paragraph, 8 USC § 1324b(a)(6), to IRCA's discrimination prohibition. That section was labeled "documentation abuses." See P.L. 101-649, section 535(a), 104 Stat. 5055.
71. IIRAIRA amended the document abuse provision to read:
A person's or other entity's request, for purposes of satisfying the requirement of section 1324a(b) of this title, for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discrimination against an individual in violation of paragraph (1).8 USC § 1324b(a)(6) as amended by § 421 of IIRAIRA, P.L. 104-208..
72. Only permanent residents, temporary residents, refugees, and asylees are protected from citizenship status discrimination. IRCA originally called these protected aliens, "intending citizens." These individuals also had to file an "intending citizen" form in order to be protected. Subsequently, IRCA was amended to eliminated this requirement and protected aliens were redesignated "protected individuals." The term also included citizens and national of the United States. See 8 USC § 1324b(a)(3).
73. 1 OCAHO 143 at 1006.
74. 1 OCAHO 189 at 1251 (emphasis added).
75. The original Handbook for Employers (M-274 dated 5-87), provided instructions for completing the original I-9 Form. In regard to reverification, it stated:
Q. What do I do when an employee's work authorization expires?Handbook at 9.
A. You will need to update the I-9 if you want to continue employing the person. At that time, the employee must present a document that either shows an extension of employment eligibility or that is a new grant of work authorization. If the employee cannot produce such a document, that person is no longer eligible to work. Continuing to employee that person is a violation of the law, even if the employee was previously authorized to work.
76. See United States v. Guardsmark, Inc., 3 OCAHO 572 (1993).
77. 3 OCAHO 414 (1992).
78. 3 OCAHO 414 at 187-89.
79. The Handbook for Employers at issue was labeled INS M-274 (5-87).
80. Id. at 186.
81. Id.at 187
82. The reports referenced were the General Accounting Office's Report entitled Immigration Reform: Employer Sanctions and the Question of Discrimination, GAO/GGD-90-62 (March 1990) and Task Force on IRCA-Related Discrimination, Report to Congress, Report and Recommendations of the Task force on IRCA-Related Discrimination (September 1990). Guardsmark, 3 OCAHO 572 at 1719-20.
83. 3 OCAHO 572 (1993)
84. 1 OCAHO 74 at 523. Id. at 1728 (emphasis added).
85. 3 OCAHO 538 at 1387.
86. Id. at 1391-92.
87. Id. 1391-92.
88. 3 OCAHO 477 at 809-10 (1992).
89. 124 F.3d 592 (3rd Cir. 1997).
90. Id. at 593-594.
91. Id. at 594-595.
92. Id. at 592-593.
93. Id. at 596.
94. Id. at 596.
95. IRCA provides for a fine of $100 to $1000 for each instance of document abuse. 8 USC § 1324b(g)(2)(B)IV). OSC applying precedent under Title VII of the 1964 Civil Rights Act argued that the law presumed the employer applied the offending practice to every alien hired unless he could demonstrate he did not. Thus, if he hired 300 aliens and the maximum fine for each incident of document abuse is $1000, an employer found himself facing a possible $300,000 fine. Whether such fines would actually be assessed is problematical. The threat of a huge fine that would require substantial legal costs to combat created a situation that appears to have encouraged settlement.
96. 6 OCAHO 830 (1995).
97. 4 OCAHO 601 (1994).
98. Zabalaat 14.
99. Zabala at 14.
100. See DeWitt and Marcel.
101. Zabala at 17
102. 3 OCAHO 429 at 364; see also Yefremov, 3 OCAHO 562 at 1602-03.
103. See Task Force on IRCA-Related Discrimination, Report to Congress, Report and Recommendations of the Task Force on IRCA-Related Discrimination (September 1990) at 27.
104. 8 USC § 1324b(a)(5).
105. 3 OCAHO 562 at 1603.
106. Hensel, 3 OCAHO 532 at 1330-31 (1993), dismissed on other grounds sub nom. 38 F.3d 505 (10th Cir. 1994)
107. 509 U.S. 502, 113 S. Ct, 2742 (1993).
108. 3 OCAHO 569 at 1703-04 (1993).
109. 3 OCAHO 568 at 1661 (1993).
110. 3 OCAHO 532 at 1331 (1993).
111. Southwest Marine, 3 OCAHO 429 at 359
112. DeWitt, 1 OCAHO 189 at 1251 (emphasis added).
113. Marcel Watch, 1 OCAHO 143 at 1001; see also Nguyen v ADT Eng'g, 3 OCAHO 489 at 922-23 (1993) (one does not have to show that an employer intended to violate § 1324b in order to prove a violation of § 1324b).
114. General Dynamics, 3 OCAHO 517 at 1172 (1993).
115. Mesa's policy was to exhaust its list of citizen pilot applicants before it would consider alien pilot applicants. It did not do a one to one comparison of qualifications to determine if a citizen and alien applicant were equally qualified. Therefore, it did not fall within IRCA's exception allowing employers to prefer citizens in such situations.
116. Mesa Airlines, 1 OCAHO 74 at 467.
117. 3 OCAHO 562 at 1593.
118. 2 OCAHO 351 at 361 (1991) (Order Denying Respondent's Motion to Dismiss).
119. The H-2 visa process allows companies to bring into the United States temporary nonimmigrant workers to perform temporary jobs. To obtain H-2 visas, an employer must demonstrate that there are not sufficient qualified U.S. workers available. This is done by applying for a labor certification from the Department of Labor. Generally, the visa and the certification must be renewed annually.
120. Id. at 374.
121. Id. at 373. OSC and McDonnell Douglas subsequently concluded a settlement agreement. Because of this agreement, OSC moved to be dismissed from the suit. The ALJ granted OSC's motion. See United States v. McDonnell Douglas, 3 OCAHO 507 (1993).
122. OSC has authority to conduct an independent investigation when there is reason to believe an employer has engaged or is engaging in an unfair immigration related employment practice. 8 USC § 1324b(d)(1); 28 CFR § 44.304.
123. OSC has the authority to seek, and ALJs have the authority to grant, subpoenas to compel the production of information during an investigation. 8 USC § 1324b(f)(2), United States v. Florida Azalea Specialists, 19 F.3d 620 (11th Cir. 1994).
124. The 50% rule applies to the H-2A visa process. The relevant DOL regulation states:
From the time the foreign workers depart for the employer's place of employment, the employer, except as provided . . . , shall provide employment to any qualified, eligible U.S. worker who applies to the employer until 50% of the period of the work contract, under which the foreign worker who is in the job was hired, has elapsed.20 CFR § 655.103(e).
125. In Re Investigation of Carolina Employers Ass'n, Inc., 3 OCAHO 455 at 605, 1992 OCAHO LEXIS 59 (1992).
126. Id. at 609-10.
127. Falcon/GK claimed it was attempting to obtain E-2 visas for these temporary workers. United States v. General Dynamics, 3 OCAHO 517 at 1135 (1993).
128. The British jig and fixture workers in question were technically employees of Falcon/GK. However, the ALJ found General Dynamics to be a joint employer stating:
Based on Respondent's exclusive control over the means and manner of performance of its jig and fixture contract labor workers, I find that under the joint employer theory, founded in common law principles, Respondent, along with the appropriate technical service firm, was a joint employer of it jig and fixture workers. Therefore, Respondent's selection of jig and fixture contract labor workers constitutes "hiring . . . for employment" under § 1324b [IRCA's antidiscrimination provision], giving me subject matter jurisdiction over Complaint's [OSC] claim.General Dynamics at 1154-55.
129. United States v. General Dynamics, 3 OCAHO 517 at 1160-61 (1993).
130. Id. at 1170.
131. Id. at 1173-74, 1176.
132. Id. at 1176.
133. As to one, the ALJ stated:
Complainant [OSC] apparently argues that it is not legitimate for a company to hire non-U.S. contract workers who are willing to accept a lower rate of pay than U.S. workers. I conclude, however, that a company may do so, without violating IRCA's antidiscrimination provision. [footnote omitted]General Dynamics at 54.
134. OSC had contended that respondent selected non-U.S. worker contract jig and fixture workers "while [a]t the same time . . . ignor[ing] the drawers full of U.S. worker resumes submitted by B&M and ITS for contract jig and fixture builder positions." General Dynamics at 49.
135. Id. at 1182.
136. Id. at 1186-87.
137. 49 F.3d
1384 (9th Cir. 1995).