Clarification About the Lone ALJ Working on Employer Sanctions Appeals

By David North on June 25, 2014

About a month ago I bemoaned the fact that the administration's enforcement of employer sanctions (i.e., private employers are barred from hiring illegal aliens) is so feeble that a single administrative law judge (ALJ) could handle all the administrative appeals stemming from that enforcement.

One in the whole country. Her name is Ellen K. Thomas.

Well, I understated my case and I want to correct it. It is worse than that.

My impression was that Ms. Thomas (whom I have not met) worked full-time on such cases; she certainly is the only ALJ in the Office of the Chief Hearing Examiner, the unit of the Justice Department that handles such work. I assumed that employer sanctions cases constituted her entire workload, but that is not the reality.

She apparently also hears appeals from another really feeble enforcement effort, those from the Office of the Special Counsel; OSC is supposed to look after instances in which employers, among other things, discriminate against U.S. citizens in favor of aliens. This administration really is not very interested in such matters, and only a few cases are pursued. But ALJ Thomas also does this kind of work as well, as evidenced in a recently announced decision against a firm named Autobuses Ejecutivos, LLC.

The company does not deal with high-tech buses that automatically eject unruly passengers, an interesting prospect that the name might indicate; rather, the name translates to Executive Buses. If you Google that, you will see a collection of elegant looking vehicles.

What the bus line does eject (or reject) are resident workers. OSC charged that the company routinely "engaged in a pattern or practice of discrimination against U.S. citizens. ... [It] favored the employment of temporary foreign nationals under the H-2B visa program over protected individuals [i.e., citizens]," according to Ms. Thomas' decision.

The reader might ask: Does the government think we have a shortage of bus drivers in this country? Do we really need to bring them in from abroad? Unfortunately this is the situation, and, of course, the foreign ones are paid less than the resident ones.

Ms. Thomas' decision in this case, dated May 29, 2014, was procedural one. The Texas-based company said that digging up information on its hiring practices for several years was unduly burdensome; the ALJ said that the discovery requests were appropriate and the employer had to produce the needed evidence.

The government should be pressing thousands of such cases regarding employers' discriminatory use of the various H nonimmigrant worker programs, but it does not. Let's hope the government wins this one, and the company — if appropriate — is not only fined by the Justice Department but is de-barred from the H-2B program by the Department of Labor