The Good Faith Criterion: Lessons Learned From US vs. M&D Masonry and Form I-9

In 2010, ICE alleged in two counts that M&D Masonry committed 364 violations against the Immigration and Nationality Act (INA). The first count charged that 277 of M&D’s employees didn’t correctly complete section 1 and 2 of Form I-9; the second count charged that M&D didn’t have proper paperwork for 87 additional employees. The company refuted ICE’s allegations, and protested to 40 of the 277 violations named in Count I, and six of the 87 violations named in Count II.

For Count I, the government contests that M&D failed to ensure that:

  • 34 employees signed the attestation in section 1 of Form I-9;
  • 60 employees checked a box in section 1;
  • three employees attested to only one status in section 1; and
  • 10 employees who attested to status as lawful permanent residents entered their respected alien numbers on the adjacent line.

For Count II, M&D failed to:

  • complete section 2 of Form I-9 properly;
  • sign section 2;
  • record the issuing authority for a List B document;
  • provide the document number for List A, List B, and List C documents; and
  • review both List B and C documents.

Additionally, M&D instead accepted unacceptable documents, and didn’t examine or authenticate many I-9 forms within three business days of the individual’s hire date.

Among the defenses, the company alleges that the proposed monetary fines are exorbitant and do not consider the M&D’s financial abilities; and that ICE’s enforcement practices are unreasonable and impulsive. On January 6, 2014, ICE revised its complaint and retracted 25 of the named persons in Count I. According to the US government, M&D supplied satisfactory evidence that demonstrated that those employees had been dismissed before ICE’s inquiry, and wasn’t within the purview of the audit.

Lesson 1

A newspaper article is actually what led ICE to inspect and fine M&D Masonry. On April 30, 2010 an article titled “Illegal hiring for airport construction?” was printed in the Atlanta Journal Constitution. The article cited a hiring foreman for M&D who said that the company was hiring people without sufficient work authorization. ICE conducted a worksite enforcement inquiry on May 7, 2010; subsequently, ICE served M&D with a Notice of Inspection (NOI) for current and past employee I-9 forms from May 7, 2007 to May 7, 2010, and for employment records, payroll data, and wage and hour reports. ICE then issued M&D with slew of other notices throughout 2010 and 2012, including a Notice of Technical and Procedural Failures (NTPF), a Notice of Suspect Documents (NSD), and a Notice of Intent to Fine (NIF).

Lesson 2 & 3

M&D was timely in their response to ICE, and filed a Request for Hearing a month after ICE issued the NIF.

After acquiring and studying M&D’s Wage Inquiry by Employer Number records—obtained from the Georgia Department of Labor—Count II of ICE’s allegations concluded that M&D failed to prepare I-9 forms for 87 employees. M&D’s violations in Count II are far more egregious than Count I because failure to properly prepare and/or present I-9 forms destroys the purpose of the INA.

Penalties

M&D believed that ICE should fine the company based on its financial means; however, the governing statute asserts that such consideration is only applicable in five certain circumstances; M&D did not fall within the scope of those circumstances. While some OCAHO cases have previously taken financial means into consideration when determining penalties in a case, such leeway is not required of the government.

ICE fined M&D $332,813.25 for 339 violations, where each violation cost $981.75. Each violation incurred a baseline penalty of $935, also taking into account the employer’s 84% error rate. ICE heightened the penalties by 5 percent for the significance of the violations—over 100 I-9 forms were purportedly verified by signature stamp, although section I of the forms reflected various dates—and 5 percent for the size of the company: M&D had been in business for over 20 years, employed over 400 workers in a three year period, had a payroll of $4.3 million, and a large amount of contracted work. ICE handled the inclusion of unauthorized workers and absence of previous violations as neutral; ICE also lessened the penalties by 5 percent due to the good faith criterion.

ICE was charitable by applying the good faith criterion in M&D’s case. The good faith criterion is gauged by a study of whether the employer tried to comply with the INA obligations before the delivery of the NOI. Since M&D’s case isn’t the most extreme example of the INA violations, the penalties were lessened to a grand total of $228,300.

Takeaway

Incorrectly preparing and/or presenting a Form I-9 is one of the grievous paperwork violations an employer can make. Good faith is only taken into account when an employer actually attempts to determine its legal duties and yield to them. When judging suitable violations of the INA, the following must be favored:

  1. size of the employer;
  2. employer’s good faith;
  3. gravity of violations;
  4. whether an individual is an unauthorized alien; and
  5. employer’s history of previous violations.
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

logo
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 2014. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Employer Defense In a Complaint of Documentary Abuse

The Office of the Chief Administrative Hearing Officer (OCAHO) has direct purview over three types of cases stemming from the Immigration and Nationality Act (INA). In this case—Salim Hajiani vs. ESHA USA, Inc. and Sameer Ramjee—Hajiani, the complainant, alleged that the respondent engaged in two of the three areas of jurisdiction over which OCAHO resides: immigration-related unfair employment practices and immigration-related fraud, which are both in violation of the INA.

Hajiani registered a complaint against ESHA USA and Ramjee, accusing the respondents of document abuse, firing Hajiani due to his citizenship status, and taking revenge on him because of a religious discrimination complaint he filed against a former employer. Salim Hajiani is a lawful permanent resident of the US.

Hajiani was hired on October 10, 2011 at Sameer Ramjee’s gas station and convenience store, ESHA, which is in Philadelphia, Tennessee. Hajiani worked at the store until January 10, 2012, when he was fired. On June 26, 2012, he filed a complaint with OSC, to which OSC responded that the complaint didn’t fall under their jurisdiction. Hajiani then filed a charge with OCAHO in February 8, 2013.

Hajiani’s complaint against his employer was a detailed litany of purported incidents of document abuse and job complaints, such as long hours, no overtime pay, and double shifts. He also specified that one of the reasons he was fired was because Ramjee preferred to employ undocumented workers so that he wouldn’t have to pay them overtime or give them benefits.

Hajiani made various allegations against other employees that were not under the scope of OCAHO’s jurisdiction—complaints of undocumented workers also do not fall under the Immigration Reform and Control Act (IRCA). Such instances include cash register shortages, sexual harassment, allegations of tax fraud, selling tobacco to minors, and that he wasn’t hired for store’s first shift because only US citizens were allowed to work that shift. Hajiani also noted in his complaint that his claim was filed timely.

However, his claim of document abuse was not filed in a timely manner. Hajiani alleged that the document abuse occurred in October 2011, but didn’t file the charge with OSC until June 26, 2012. The IRCA strictly says, “no complaint may be filed respecting any unfair immigration-related practice occurring more than 180 days prior ot the filing of a charge with OSC.” Hajiani’s complaint would only have been valid for events after December 29, 2011.

None of Hajiani’s claims—his filed complaint of religious discrimination with the US Equal Employment Opportunity Committee (EEOC), nor his complaints about the terms and conditions of his job—come under the purview of OCAHO, or are protected by IRCA. OCAHO only covers hiring, recruitment, and discharge.

Moreover, Hajiani never submitted evidence that any discrimination occurred. If Sameer Ramjee had been prejudiced against Hajiani, then Ramjee would never have employed Hajiani. Hajiani provided too many explanations of why he was fired, allowing OCAHO to conclude that Hajiani did not divulge his own behaviors that caused Ramjee to fire him.

OCAHO dismissed Hajiani’s complaint against his employer.

See you in my next blog.
Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

logo
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 2014. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Negotiating I-9 Fines

In my previous blog, I wrote about OCAHO negotiating I-9 fines. To negotiate fines either with ICE or OCAHO, the employer must be willing to file a brief with OCAHO to request a hearing, and then ICE may be willing to ‘come to the table’.

Prior to the hearing, the employer and counsel must analyse each count against the company, either to accept or refute and prepare a brief accordingly. Both ICE and OCAHO consider the 5 factor test before negotiating a fine:

  1. The size of the employer’s business,
  2. The employer’s good faith,
  3. The severity of the violation(s),
  4. Whether individuals involved were unauthorized aliens, and
  5. A history of former violations by the employer.

Employers must be careful to tender only Forms I-9, which are for current employees, and refrain from tendering purged documents.

Methodical analysis of the NIF (Notice of Intent to Fine), counts and legal basis is a must in order to be ready to negotiate with ICE and, if necessary, to request a hearing from OCAHO.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
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.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather

Recent I-9 Fines Reduced by OCAHO

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:

  1. The size of the employer‘s business,
  2. The employer’s good faith,
  3. The severity of the violation(s),
  4. Whether individuals involved were unauthorized aliens, and
  5. 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.

Burger King

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.

Lesson Learnt

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
Immigration Attorney
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.

Tara Mahadevan

Copyright 2013. All rights reserved.

Post Footer automatically generated by Add Post Footer Plugin for wordpress.

Social Share Toolbar
Facebooktwittergoogle_pluslinkedinrssyoutubeby feather