A NH painting contractor was charged in October 2012 for violations of the Fair Standards Labor Act’s (FLSA) minimum wage, overtime and record keeping requirements. In 2014, the Department of Labor (DOL) obtained a preliminary injunction preventing the contractor from intimidating, retaliating or discriminating again current or former employees involved in the investigation and lawsuit. Specifically, the contractor threatened to call immigration if the employees cooperated with the DOL. A consent judgment was issued in which the contractor was ordered to pay $427,000 to 157 employees who were denied payment of overtime and/or minimum wage. In addition, they were ordered to pay civil money penalties to the DOL, maintain accurate records, provide employees and manager with training on FLSA’s requirements and prohibits them from withholding payment of back wages or damages, demanding, keeping or accepting back wages or damages to be paid or failing to cooperate with the DOL. The lesson to be learned here is to make sure that you comply with all laws when it comes to your foreign and U.S. employees, never threaten your employees into doing anything and to keep and maintain accurate records.
The Office of the Chief Administrative Hearing Officer (OCAHO) reduced the penalty for Liberty Packaging, Inc. after finding that although backdating I-9 forms is a serious violation, Liberty Packaging Inc. (Liberty) is a small employer with no history of previous violations and the unauthorized status of the five individuals listed in the NSD was not established. (U.S. v. Liberty Packaging, Inc., 2/24/15) .
Immigration and Customs Enforcement (ICE) filed a complaint alleging that Liberty failed to timely prepare 18 forms I-9 in violation of Immigration Reform and Control Act of 1986 (IRCA). ICE served Liberty with a Notice of Inspection (NOI) on July 31, 2012 and subsequently conducted a Form I-9 inspection in response to which Liberty provided an employee list, recent payroll records and 21 forms I-9. On September 25, 2012, ICE served Liberty with a Notice of Suspect Documents (ND) and a Notice of Intent to Fine (NIF) on March 20, 2013. Liberty’s answer was accompanied by a different set of 19 I-9s. ICE filed their complain with OCAHO on January 2, 2014.
For various reasons discussed in the opinion, ICE asserted that Liberty backdated the forms I-9. As such, they set a baseline penalty of $935 for each of the 18 violations and enhancements totaling 15% were added for bad faith, seriousness of the violations and presence of unauthorized workers. OCAHO in its opinion found that although an employer may not have done anything wrong, they are responsible for the wrongs that may be perpetrated by their agents of a form I-9. Notwithstanding, OCAHO determined that ICE failed to show that the penalties should be enhanced based on the presence of allegedly unauthorized workers in Liberty’s workforce and that a NSD is not sufficient in itself to establish a worker’s unauthorized status. As such, OCAHO reduced the penalty to a rate of $650 for each of the 18 violations.
Several lessons to be learned:
1. Never backdate a Form I-9.
2. Never fire an individual who is listed on the NSD without first allowing them to present other evidence of work eligibility and identity.
3. A NSD is not enough to determine a worker’s unauthorized status.
4. Always cooperate with ICE and retain the services of an immigration attorney with extensive experience with I-9 compliance.
Horno MSJ Ltd. Co. is a bakery in San Antonio, Texas which opened in March 2006. It is jointly owned by an elderly married couple. ICE served Horno with a Notice of Inspection (NOI) and subpoena on July 31, 2012. The inspection of the I-9s was scheduled for several days later. Horno presented 26 original I-9s and various other documents. After the inspection ICE served Horno with a Notice of Suspect Documents (NSD) and a Notice of Discrepancies in September 2012. A Notice of Intent to Fine (NOF) was served on March 5, 2013. ICE found that Horno failed to present nine Form I-9s and that the 26 I-9s presented were deficient. ICE fined Horno over 31K for the 32 violations. Horno argued that it was not required to present the nine Form I-9s since those individuals never showed up for work. However, the Administrative Law Judge found Horno was indeed liable since they paid these nine individuals to attend orientation, thus they were Horno’s employees and as such, Horno was required to have each individual complete Section 1 of the Form I-9 since the regulations require that it be completed on the first day of hire. Based on their size, the nature of the violations and the current status of the business, the ALJ ultimately lowered the fine to $14,600. The moral of this story is that if as an employer, you must make sure that you begin the Form I-9 process, especially if you pay applicants to attend orientation and/or training and make sure on that first day that they complete Section 1.
Employer Solutions Staffing Group II (ESSG), a large MN company with six to eight thousand temporary employees on its payroll, was recently fined $225 for “creating false attestations” on Section 2 of the I-9. Specifically, ESSG reviewed copies of the employee’s I-9 documents “without ever seeing the individuals whose documents they examined.” This is a clear failure to comply with the I-9 regulations as it is Section 2 that is the core of the employment verification process. This case is important for many reasons. First, it is further evidence that employers must be diligent when completing their I-9s. This is especially true for staffing companies who may employ remote hires. Employers – You must always review the original and unexpired identify and work authorization documents of each and employee and this must be done in the presence of the employee. Otherwise, how can you properly attest that you have done so? Second – E-Verify will not excuse such a failure to comply. In fact, it is a requirement of the E-verify system that you properly complete an I-9 before you run an E-Verify query. Thus, the affirmative defense provided by the regulations would be unavailable to an employer who creates a false attestation on an I-9. Finally, notwithstanding that no unauthorized workers are hired, this type of failure to comply with I-9 requirements is an exceedingly serious offense that could lead to a maximum penalty of $1100 per violation as well as other sanctions. In fact, in this case, ESSG was fined $935 per violation.
Update: On August 11, 2016, the 5t Circuit Court of Appeals vacated the $226,000 fine against Employer Solutions Staffing Group II (ESSG) having ruled that is was not a violation for them to have one of its agents inspect original employee documents in Texas and have another person in Minnesota complete the employer attestation in Section 2 after reviewing the photocopies of the documents sent by the Texas agent. See Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016) and my new blog above.
Golf International DBA Desert Canyon Golf, an E-Verify employer, was found liable for 129 Form I-9 violations by the Office of the Chief Administrative Hearing Office (OCAHO). This included 125 violations consisting of failure to ensure that employees properly completed Section 1 of Form I-9 and/or failure to properly completing Section of Form I-9 and four violations consisting of failure to prepare and/or present Forms I-9. The total fine was $136,697.00. In its decision, OCAHO made it clear that the good faith defense is only available for technical and procedural Form I-9 violations and that participation in E-Verify DOES NOT exempt an employer from properly completing, retaining and producing for inspection Forms I-9 that relate to its employees. This is a good reminder that all employers should audit their Forms I-9 and review any internal procedures regarding the proper completion and retention of their Forms I-9 on a regular basis. Remember – An employer’s first and most important responsibility is to properly complete a Form I-9 for each new employee regardless of whether or not they use E-Verify.