OCAHO Dismisses Citizen Worker's Claim Alleging Employer Preferred Hiring Undocumented Workers

IMMIGRANTS & EMPLOYMENT

IRCA Employment Verification and
Antidiscrimination Protections

OCAHO DISMISSES CITIZEN WORKER’S CLAIM ALLEGING EMPLOYER PREFERRED HIRING UNDOCUMENTED WORKERS
Immigrants' Rights Update, Vol. 17, No. 4, July 15, 2003

The Office of the Chief Administrative Hearing Officer (OCAHO) has dismissed a naturalized U.S. citizen’s complaint that he was intentionally not hired because of his citizenship, holding that because there was no evidence that the employer knew of the complainant’s citizenship status, there was no discrimination.

The administrative law judge also denied the complainant’s claim regarding the employer’s hiring of undocumented workers and failing to verify that its workers are authorized to work, finding that Congress did not create a “private cause of action or third party mechanism” in the employer sanctions provision of the Immigration and Nationality Act (8 U.S.C. § 1324a). The ALJ distinguished this from the private right of action expressly contained in the antidiscrimination provisions of the INA (8 U.S.C. § 1324b), such as the right to file a claim alleging citizenship status discrimination.

The complainant, Juan Manuel Alamprese, claimed that Del Taco #171 intentionally chose to employ undocumented workers and that he was intentionally not hired because he was a naturalized U.S. citizen. Both U.S. Ninth Circuit Court of Appeals and OCAHO case law require that for an employer to be found liable under the antidiscrimination provisions, the employer must have known about the characteristic that was the alleged basis for the discrimination. The ALJ found that there was no evidence that Del Taco knew or had reason to know whether or not Alamprese was a U.S. citizen and that therefore it could not have intentionally discriminated against him on that basis. Alamprese had spoken only Spanish when dealing with Del Taco management and had not mentioned his citizenship status on his application or to anyone at Del Taco, and no one at Del Taco had asked him about his citizenship status.

Although Del Taco insisted that it had never been notified of any problem with its workers’ employment authorization, Alamprese claimed that there were discrepancies between Del Taco’s employment eligibility verification forms and the documents that workers had submitted to establish their employment eligibility. He submitted Social Security Administration “no-match” letters that the SSA had sent Del Taco regarding certain of its employees. (The SSA sends no-match letters to employers to alert them to employee name and Social Security number discrepancies that result in workers not receiving proper credit for their earnings.) However, the ALJ said that the immigration status of Del Taco’s workers was in any case irrelevant to Alamprese’s discrimination claim, since he was unable to show that Del Taco had known of his citizenship status or had discriminated against him on the basis of it. Because individuals are not authorized to file complaints with the OCAHO regarding employer violations of the INA’s employment eligibility verification requirements, the ALJ also dismissed Alamprese’s claim that he should be paid damages for each unauthorized worker whom Del Taco employed.

Alamprese v. Minsh, Inc. d/b/a/ Del Taco #171, 9 OCAHO No. 1094 (Mar. 20, 2003).