From the Office of Special Counsel: Anatomy of an OSC Investigation
The phone rings.
"Hello, this is Attorney Smith with the Office of Special Counsel for Immigration-Related Unfair Employment Practices, may I speak to the Human Resource manager in charge of your Form I-9 process?"
You say to yourself, “This is not good. I have no idea what this government agency is — Office of the Special Counsel for...what?” Your gut confirms: this does not sound good at all.
"This is she. I'm sorry, you are with whom?"
"The Office of Special Counsel for Immigration-Related Unfair Employment Practices...the OSC. I'm calling about a complaint our office received regarding your company re-verifying Permanent Residents, requiring applicants to complete Forms I-9 before you offer them employment and, last but not least, asking certain employees to bring in Social Security cards."
You ask yourself, “Is this as serious as it sounds? What do I do now?”
What is the The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC for short)?
The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act (INA), which protects work-authorized individuals from discrimination during the process of hiring, firing, employment eligibility verification, and recruitment or referral for a fee on the basis of citizenship status and national origin. The statute also protects all work-authorized individuals from retaliation in connection with exposing such practices or asserting their rights under the law’s anti-discrimination provision.
OSC provides a hot-line where employees can report concerns and discuss complaints that they often will make queries to ascertain. As a result of receiving a call, OSC attorneys will review the facts and determine if a basis exists for moving
forward. Often times there are miscommunications that can be cleared up at the initial stage. This can be done through educating the employer and/or clarifying the situation with the employee.
What happens when an actual charge is received?
OSC investigates every complete charge received, although many charges are dismissed as incomplete for lack of jurisdiction or failure to state a claim that indicates a violation of the INA’s anti-discrimination provisions. OSC also conducts self-initiated or independent investigations when it discovers information that suggests a possible violation of the INA’s anti-discrimination statute by an employer. This information is often the result of an unrelated investigation.
Within 10 days of receiving a complete charge, the Equal Opportunity Specialist (EOS) or attorney assigned to a case sends letters to the person or group bringing the charge, the Office of the Chief Administrative Hearing Officer (OCAHO), and the entity allegedly violating the INA anti-discrimination provision. The letter explains the filing of a complete charge and the time frame of an initial investigation (120 days). Respondents are directed to submit additional information and documents relevant to the investigation. If your company receives a letter from OSC, it should be taken very seriously and the response should be reviewed by counsel.
By the 120th day, OSC determines whether there is reasonable cause to believe that a violation of the INA’s antidiscrimination statute has occurred, whether to continue investigating the charge for an additional 90 days, or whether to dismiss the charge. Irrespective of OSC’s decision, the person or group bringing the claim receives a letter stating that he or she has 90 days from the date of receiving OSC’s 120-day letter to submit a complaint with OCAHO even if OSC ultimately declines to pursue its own complaint. At this point, the OSC also notifies the respondent of the status of its investigation.
At this point, we often recommend a review of companies’ policies as they relate to immigration compliance, including the hiring process, E-Verify procedures, and Form I-9 completion, even if these policies are outside the scope of the specific information being investigated by OSC. OSC attorneys are bright, resourceful, and relentless when necessary, and we have found them to be knowledgeable adversaries. Fortunately, we have been able to work with OSC at the initial investigation stage in a number of matters, including instituting compliance safeguards and closing out investigations with settlement agreements when appropriate. When an investigation continues past the initial 120-day period, OSC must decide by the 210th day whether to dismiss the case, begin settlement negotiations, or file a lawsuit. In cases where the OSC attorney is unable to render a decision within 210 days, both parties generally agree to additional time.
What does this mean to my company?
Investigations by the OSC should be taken very seriously and internal reviews of employment verification practices must be central to companies’ overall compliance strategies. Companies must ensure that they abide by the INA’s anti-discrimination provisions and treat all employees consistently by not arbitrarily requiring employees to provide new or updated Form I-9 information or document copies. It is important to note, however, that companies do not need to run very far afoul of the law to trigger the OSC’s attention. Indeed, the Obama administration has resurrected the use of civil fines for Form I-9 violations and intensified the government’s enforcement efforts to actively pursue employers who engage in discriminatory hiring practices. Companies contacted by the OSC should immediately retain experienced immigration counsel and assess potential liability at additional locations, if applicable.
Examples of recent investigations by the Office of Special Counsel (OSC)
On January 4, 2012, the Justice Department reached a settlement with the University of California San Diego Medical Center over allegations that it subjected newly hired non-U.S. citizens to excessive demands for documents verifying their employment eligibility but did not impose the same requirement on newly hired U.S. citizens. The Immigration and Nationality Act (INA) prohibits employers from discriminating against employees on the basis of citizenship status or national origin by imposing disproportionate documentary burdens during the hiring and employment eligibility verification processes. Under the terms of the agreement, the Medical Center will implement new employment eligibility verification policies to ensure equal treatment of all employees, pay a $115,000 civil penalty, conduct supplemental training of its human resources personnel, and coordinate with the Department of Justice to maintain compliance with proper employment eligibility verification processes across all University of California campuses, medical centers and facilities. To date, the Medical Center has taken appropriate measures to comply with the INA’s anti-discrimination provision and has received a Department of Homeland Security and U.S. Immigration and Customs Enforcement (ICE) training on how to properly use work authorization documents.
On December 30, 2011, the Justice Department announced a settlement with Garland Sales, Inc. of Georgia over allegations that the rug manufacturer engaged in discrimination by subjecting employees of Hispanic descent to unnecessary documentary requirements when establishing their eligibility to work in the United States and retaliating against a worker who protested. According to the terms of the settlement, Garland will pay $10,000 in back pay and civil penalties and will undergo training on proper employment eligibility verification practices. The Department’s complaint alleges that Garland required newly hired non-U.S. citizens and foreign-born U.S. citizens to present work authorization documents beyond those required by federal law, including a “green card” in addition to an unexpired driver’s license and an unrestricted Social Security card. The Immigration and Nationality Act (INA) mandates equal treatment of authorized workers during the hiring process, regardless of their national origin or citizenship status.
On December 13, 2011, the Justice Department announced a settlement with S.W.J.J. Inc., or Sernak Farms, of Weatherly, Pennsylvania over allegations that Sernak engaged in discrimination on the basis of citizenship status by preferring to hire temporary visa holders over U.S. citizen applicants and adversely treating its U.S. citizen employees. The Department of Justice investigation revealed that Sernak hired three foreign national workers under the H-2A visa program but did not consider hiring three of the eight U.S. citizens who brought the underlying charge on the belief that H-2A visa holders are more diligent than U.S. workers. Of the five U.S. citizens who were hired, the government’s investigation suggested that Sernak treated them differently than its foreign national employees in the terms and conditions of their employment and then dismissed them because of their citizenship status, a violation of the Immigration and Nationality Act (INA). Under the terms of the settlement, Sernak agreed to pay $30,000 in back pay to the eight injured parties, who are U.S. citizens residing in Puerto Rico. The company has also agreed to provide its employees with training on the anti-discrimination requirements of the INA, adopt nondiscrimination policies with respect to recruitment and hiring, and maintain and submit records to the Department of Justice for the three-year term of the agreement.
On September 21, 2011, the Office of Special Counsel (OSC) issued a letter of resolution to Glenn Walters Nursery of Cornelius, Oregon, in response to a charge of document abuse and citizenship status discrimination brought by a Legal Permanent Resident. The employee who brought suit alleged that he was fired when he could not comply with an improper request to present a new permanent resident card and thereby demonstrate employment eligibility. The letter of resolution provides that Glenn Walters Nursery will train its human resources staff on the Form I-9 process and the anti-discrimination provision of the INA, implement corrective measures to correct the computer software error that caused the improper document request, refrain from reverifying the employment eligibility of permanent residents whose Permanent Resident Cards expire, and reinstate the employee with seniority, benefits and $12,000 in back pay.
On August 31, 2011, OSC issued a letter of resolution to Dollar Bank of Cleveland, Ohio in response to allegations that the Bank engaged in discriminatory hiring practices based on citizenship status. The employee who brought an action against Dollar Bank alleged that the company declined to hire her because she was a Legal Permanent Resident and not a U.S. citizen at the time of her application. The letter of resolution awards the employee $6,500 in back pay and requires Dollar Bank to consult with OSC about creating a comprehensive training program for its human resources personnel.
On August 30, 2011, OSC issued a letter of resolution to Texas Women’s University (TWU) of Denton, Texas to resolve allegations that the university engaged in citizenship discrimination by denying an internship to the aggrieved employee because he is a Legal Permanent Resident and is not required to register for the Selective Service due to age. In response to his claim that the university preferred to hire U.S. citizens who registered for the Selective Service, the letter of resolution awards the employee $1,023.47 in back pay and requires TWU to consult with OSC to create a comprehensive training program for its human resources personnel.
Crossing the citizenship discrimination spectrum, OSC issued a letter of resolution to Best Packing Services, Inc. of Philadelphia, PA to resolve allegations of discriminatory hiring practices against a U.S. citizen. The letter, issued on August 22, 2011, resolves an employee’s claim that Best Packing Services preferred to hire non-U.S. citizens and denied him employment because he is a U.S. citizen. The letter of resolution provides that the employee receive $1,500 in back pay and requires Best Packing Services to work with OSC to create a comprehensive training program for its human resources personnel.
Resources from the Office of Special Counsel (OSC)
The Immigration Reform and Control Act (IRCA) that created OSC mandates a rigorous outreach effort to educate employers and workers about their rights and obligations under the INA’s anti-discrimination and employer sanctions provisions. To this end, OSC’s outreach materials target employers and workers alike. Resources intended for employer audiences include written materials on avoiding discrimination, navigating the E-Verify process, and posting employment opportunities online, as well as Social Security no-match guidance and information about the Form I-9 documents that refugees, asylees, and individuals with Temporary Protected Status (TPS) may present. In addition to printed materials, OSC also offers a variety of multimedia resources including videos and PowerPoint presentations.
To access these materials, please visit http://www.justice.gov/crt/about/osc/htm/employer.php. We urge employers to access these resources as part of a robust compliance strategy which includes developing or improving existing compliance plans and providing regular and ongoing training, including anti-discrimination and fraud document seminars, to human resources staff responsible for Form I-9 completion. For up-to-the-minute immigration compliance news, please visit http://immigration.gtlaw.com.