OCAHO Explains "Constructive Knowledge" Where a Small Company Rehires Unauthorized Employe
The Immigration and Control Act of 1986 (“IRCA”) prohibits employers from hiring workers who are not authorized to work in the U.S. "Knowlege" under IRCA may be actual and constructive ("the you should have known" standard).
In United States v. Associated Painters, Inc. a matter recently heard by the Chief Administrative Hearing Officer (“OCAHO”), in which OCAHO has outlined factors the decision-makers will look into in determining if an employer had knowledge, and more specifically, constructive knowledge, of the unauthorized status of its employees. In this case, employees failed to check a box identifying their immigration status, and the employer failed to prompt them in checking the appropriate box on Form I-9. Immigration and Customs Enforcement (“ICE”) brought charges against Associated Painters, Inc. (“API”) alleging that the employer had knowledge, or constructive knowledge, that the workers were not authorized to work in the United States.
In this case, ICE audited API's I-9 forms and claimed API should have known that they had hired three employees who were not authorized to work in the U.S. API received a notice in 2000 stating that 34 of their employees, including the three involved in this case, could not continue to be employed until the I-9 forms were properly filled out to determine the eligibility of the workers; other violations were alleged as well. API made corrections on I-9 forms for its employees, except for I-9s for the three employees whose authorization to be employed in the US was questions because those three employees did not continue working for API after the 2000 notice from ICE. It was not until four to eight years later that these three employees were rehired. API argued that their records were not centralized and that the managers who rehired these employees were unaware of the violation. OCAHO determined that the government had not presented enough evidence to show API had constructive knowledge of any I-9 violations when rehiring the employees.
Constructive Knowledge as Defined by IRCA
IRCA currently defines “knowing” as:
“The term knowing includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. Constructive knowledge may include, but is not limited to, situations where an employer: …
(ii) Has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or
(iii) Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.”
ICE argues API had notice of the violations and acted with reckless disregard by rehiring the employees after they had received notice. API claims that its record keeping is not centralized and that the individuals were hired by different managers who did not have the knowledge of the status issues. OCAHO must determine the level of knowledge based on the evidence provided by ICE.
Legal Standard as Determined by Case Law
The level of knowledge is still determined by OCAHO who use previously decided cases and comparing those cases to API’s situation. Many cases deal with employers who continue to employ the unauthorized workers after receiving notice. In these situations, OCAHO recognizes there is clear knowledge of the violation. However, API did not continue to employ the allegedly unauthorized employees after the ICE notice, creating a different situation for OCAHO to decide.
OCAHO first clarifies the need to follow the congressional intent behind the law. In this case, the congressional intent is to prevent the employment of unauthorized aliens while also limiting employer discrimination in the hiring process. To protect both aspects, OCAHO has repeatedly stated that the idea of constructive knowledge should be sparingly applied. Therefore, OCAHO looks to apply the constructive knowledge doctrine when an employer is willfully blind in hiring an unauthorized worker. This means that the employer’s suspicions should have been or were raised when hiring the employee, but the employer failed to inquire further into the validity of the worker’s status.
OCAHO looks to the entire situation surrounding the hiring of the employee to determine if there was constructive knowledge. The government is required to provide evidence that the employer should have been alerted to possible issues and then failed to take reasonable steps to investigate the matter. This means that ICE must present evidence showing API was suspicious that the employees were unauthorized to work in the U.S. and decided to go ahead and hire them without investigating the issue. ICE claims that the previous 2000 notice should have raised suspicions that the employees were unauthorized workers and API failed to act on these suspicions.
OCAHO determined there was a lack of evidence showing, at the time the employees were hired 4 to 8 years later, that API should have been aware of the suspicious circumstances, and there was no evidence showing API actively avoided investigating the issue. OCAHO decided it could not find constructive knowledge of a violation based on the facts presented. This does not mean there was no violation on the part of API. ICE may still investigate and provide evidence showing a deliberate ignorance of the I-9 violations.
United States v. Associated Painters, Inc. 05/30/2012 10 OCAHO No. 1151
Law Clerk, Corporate Immigration Practice
The Mdivani Law Firm
Corporate Immigration Training:
Corporate Immigration Compliance Officer Training I-9 Auditor Training
I-9 Self Audits: The Best Way to Prevent I-9 Disasters