Speech #980211716

The Clerk will designate the amendment. The text of the amendment is as follows: Amendment No. 6 offered by Mr. FRANK: Page 15. strike out lines 19 through 24 and insert in lieu thereof the following: "(h)(1)(A) It is an unfair immigrationrelated employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien) with respect to the hiring. or recruitment or referral for a fee or other consideration. of the individual for employment because of such individuals national origin or alienage. "(B) Subparagraph (A) shall not apply to"(i) a person or other entity that employs three or fewer employees. "(ii) a persons or entitys discrimination because of an individuals national origin if the discrimination with respect to that person or entity and that individual is covered under section 703 of the Civil Rights Act of 1964. or "(iii) discrimination because of alienage which is otherwise required in order to comply with law. "(2) Any person (or person. including a class. representing such persons) alleging that the person is adversely affected directly by an unfair immigrationrelated employment practice or an officer of the Service alleging that an unfair immigrationrelated employment practice has occurred or is occurring may file a charge respecting such practice or violation with the Special Counsel of the United States Immigration Board (hereinafter in this subsection referred to as the Special Counsel and the Board. respectively). Charges shall be in writing under oath or affirmation and shall contain such information as the Board requires. The Special Counsel shall serve a notice of the charge (including the date. place. and circumstances of the alleged unfair immigrationrelated employment practice) on the person or entity involved within ten days "(3)(A) The Special Counsel shall investigate each charge received and. within 30 days of the date of the receipt of the charge. determine whether or not there is reasonable cause to believe that the charge is true and whether or not to bring a complaint with respect to the charge before the Board. The Special Counsel may. on his own initiative. conduct investigations respecting unfair immigrationrelated employment practices and. based on such an investigation and subject to subparagraph (C). file a complaint before the Board. "(B) If the Special Counsel. after receiving such a charge respecting an unfair immigrationrelated employment practice. has. not filed a complaint before the Board with respect to such charge within such 30day period. the person making the charge may (subject to subparagraph (C)) file a complaint directly before the Board. "(C) No complaint may be filed respecting any unfair immigrationrelated employment practice occurring more than 180 days prior to the date of the filing of the charge with the Special Counsel and the service of a copy thereof upon the person or entity against whom such charge is made. This clause shall not prevent the subsequent amending of a charge or complaint under paragraph (4)(A). "(4)(A) Whenever a complaint is made that a person or entity has engaged in or is engaging in any such unfair immigrationrelated employment practice. the Board. through an administrative law judge designated by the Board for such purposes. shall have power to issue and cause to be served upon such person or entity a copy of the complaint and a notice of hearing before the Judge at a place therein fixed. not less than five days after the serving of the complaint. Any such complaint may be amended by the judge conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon. The person or entity so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. "(B) Hearings on complaints under this subsection shall be considered before administrative law judges who are specially designated by the Board as having special training respecting employment discrimination and. to the extent practicable. before such judges who only consider cases under this section. "(C) Any person filing a charge with Special Counsel respecting an unfair immigrationrelated employment practice shall be considered a full party to any complaint before the Board respecting such practice and any subsequent appeal respecting that complaint. In the discretion of the administrative law judge conducting the hearing or the Board. any other person may be allowed to intervene in the said proceeding and to present testimony. "(5)(A) The testimony taken by the administrative law judge shall be reduced to writing and filed with the Board. Thereafter. in its discretion. the Board upon notice may provide for the taking of further testimony or hear argument. "(B) The administrative law judge shall issue and cause to be served on the parties to the proceeding a proposed report. together with a recommended order. which shall be filed with the Board. and if no exceptions are filed within 20 days after service thereof upon such parties. or within such further period as the Board may authorize. and such recommended order shall become the order of the Board and become effective as therein prescribed. "(6) In conducting investigations and hearings under this subsection and in accordance with rules of the Board. the Special Counsel and administrative law judges"(A) shall have reasonable access to examine evidence of any person or entity being investigated. and "(B) by subpena may compel the attendance of witnesses and the production of evidence at any designated place or hearing. In case of contumacy or refusal to obey a subpena lawfully issued under this paragraph and upon application of the Board. an appropriate district court of the United States may issue an order requiring compliance with such subpena and any failure to obey such order may be punished by such court as a contempt thereof. "(i)(1) If. upon the preponderance of the testimony taken. the Board shall be of the opinion that any person or entity named in the complaint has engaged in or is engaging in any such unfair immigrationrelated employment practice. then the Board shall state its findings of fact and shall issue and cause to be served on such person or entity an order which requires such person or entity to cease and desist from such unfair immigrationrelated employment practice. Such an order also may require the person or entity"(A) to comply with the requirements of subsection (b) with respect to individuals hired (or recruited or referred for employment for a fee or other consideration) during a period of up to three years. "(B) to retain for the period referred to in subparagraph (A) and only for purposes consistent with the last sentence of subsection (b) the name and address of each individual who applies. in person or in writing. for hiring for an existing position. or for recruiting or referring for a fee or other consideration. for employment in the United States. "(C) to hire individuals directly and adversely affected. with or without back pay. "(D) if the Board finds that the practice was intentional. to take such other action as the Board deems appropriate. and "(E)(i) except as provided in clauses (ii) and (iii). to pay a civil penalty of not more than $2.000 for each individual discriminated against. "(ii) except as provided in clause (iii). in the case of a person or entity previously subject to such an order. to pay a civil penalty of not more than $3.000 for each individual discriminated against. or "(iii) in the case of a person or entity who has engaged or is engaging in a pattern or practice of such discrimination or of such a violation. to pay a civil penalty of not more than $4.000 for each individual discriminated against. "(2)(A) In providing a remedy under paragraph (1)(C). back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Board. Interim earnings or amounts earnable with reasonable diligence by the individual or individuals aggrieved against shall operate to reduce the back pay otherwise allowable under such paragraph. No order of the Board shall require the hiring of an individual as an employee of the payment to him of any back pay. if the individual was refused employment for any reason other than discrimination on account of national origin or alienage. "(B) In applying this subsection in the case of a person or entity composed of distinct. physicially separate subdivisions each of which provides separately for the hiring. recruiting. or referring for employment without reference to the practices of. or under the control of. or common control with. another subdivision. each such subdivision shall be considered a separate person or entity. "(3) If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person or entity named in the complaint has engaged or is engaging in any such unfair immigrationrelated employment practice. then the Board shall state its findings of fact and shall issue an order dismissing the complaint. "(4) In any complaint respecting an unfair immigrationrelated employment practice. the Board. in its discretion. may allow a prevailing party. other than the United States. a reasonable attorneys fee. "(5)(A) The provisions of subsections (d). (e). (f). (g). (i). and (j) of section 10 of the National Labor Relations Act (29 U.S.C. 160) shall apply to court petitions and review of orders under this section in the same manner as they apply to court petitions and orders under that section. except that the authority of the General Counsel or Lie National Labor Relations Board under those subsections shall be exercised for purposes of this paragraph through the Special Counsel to the Board. "(B) In any proceeding referred to in subparagraph (A). the court. in its discretion. may allow a prevailing party. other than the United States. a reasonable attorneys fee as part of costs. Page 29. after line 6. insert the following: The Board shall also exercise functions described in subsections (h) and (i) of section 274A. Page 31. line 10. strike out "274A" and insert in lieu thereof "274A(d) and. with respect to judges designated to hear such cases. complaints under section 274A(h).".