Recently, the Office of the Chief Administrative Hearing Officer (OCAHO) has shown a trend of leniency towards companies that are found to be noncompliant with ICE‘s Form I-9 rules and regulations. ICE, on the other hand, isn’t always as forgiving as OCAHO, which can be expressly seen in ICE’s cases against March Construction, Inc., Forsch Polymer Corp., BKR Restaurants (DBA Burger King) and Barnett Taylor (DBA Burger King).
In order to determine a baseline fine for companies, ICE surveys five factors:
- The size of the employer‘s business,
- The employer’s good faith,
- The severity of the violation(s),
- Whether individuals involved were unauthorized aliens, and
- A history of former violations by the employer.
March Construction, Inc.
The construction company, March Construction, was found liable for a total of 103 violations after assessments made by both ICE and OCAHO. For March Construction, ICE determined a baseline fine of $770, but increased the baseline by 15% due to March Construction’s supposed lack of good faith, severity of violations and employment of undocumented workers. ICE requested $885.50 per violation for a total of $86,933.
OCAHO agreed with ICE on the severity of the violations, however found that ICE had no evidence that March Construction was actually employing undocumented workers. Also, the company’s ability to pay the fines is a major factor. OCAHO ultimately asked for a reduced sum of $17,120.
Forsch Polymer, Corp.
In June 2010, ICE issued a Notice of Inspection (NOI) to Forsch Polymer, asking for Forms 1-9 for all employees from the past year. The company sent ICE only 12 completed I-9s, and was consequently charged with 11 violations of the Immigration Reform and Control Act (IRCA), among the violations were failing to properly complete an entire Form I-9 and certain sections of Form I-9. ICE requested a fine of $11,827.75.
However, OCAHO found ICE in error: OCAHO discovered that three of Forsch’s employees did not complete an I-9 within three days of being hired. OCAHO determined that this was the fault of ICE — ICE should have issued a notice and provided ample time for Forsch Polymer to correct these mistakes. OCAHO dismissed the allegations of the company’s failure to complete Forms I-9, but found ICE correct in finding fault with the employer for backdating several Forms I-9.
ICE sought a baseline fine of $935 per violation, aggravating the baseline penalties 5-15% for each violation due to the severity of violations, lack of good faith and employment of four unauthorized aliens. OCAHO ultimately asked for a reduced sum of $4,600.
BKR Restaurants and Barnett Taylor both do business as Burger King restaurants, and were both issued NOIs on the same day in December 2007. BKR Restaurants was found liable for a total of 87 violations of IRCA for not having Forms I-9 ready for 22 employees, and improperly completing Forms I-9 for 65 employees. Barnett Taylor was issued similar charges for not having Forms I-9 ready for 74 employees, and improperly completing Forms I-9 for nine employees.
Both BKR Restaurants and Barnett Taylor gave reasons for their failure in properly completing and retaining Forms I-9 for their employees; however, neither restaurant had convincing evidence bolstering their claims. Although OCAHO has supported a trend of reducing penalty amounts, OCAHO still requires companies to provide adequate evidence against ICE’s allegations. None of the companies’ explanations created a defense of impossibility, which can only be established if the Forms I-9 has been completed but then lost or destroyed in a burglary or fire.
No final penalties were brought upon either restaurant; instead, OCAHO gave both restaurants 30 days to make additional filings — allowing the companies to right their wrongs.
Initiating, processing, maintaining and auditing procedures for companies and employers are absolutely vital to the health of a company. Such procedures will assist in minimizing and quantifying employer liability, and more importantly will assist and enable the counsel for the employer to craft a defense in the event of audit.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Lowenbaum Partnership, LLC
St. Louis, Missouri
The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.
Copyright 2013. All rights reserved.
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