On Monday, August 11, 2016, the 5th Circuit Court of Appeals vacated a $226,000 fine again Employer Solutions Staffing Group (ESSG) in a ruling that determined that it was not at that time a violation for an employer to have one of its agents inspect original employee documents in Texas and have an employer representative in Minnesota complete the employer attestation in Section 2 of the Form I-9 after reviewing the photocopies of the documents sent by the agent in Texas. In the underlying cases, ICE alleged that ESSG failed to ensure that 242 employees properly completed Section 1 of the Form I-9 or failed to properly complete Section 2 or 3 of the Form I-9, thereby committing substantive I-9 violations. The 5th Circuit said that the INA was unclear as to whether the same person who reviews the original documents must also complete Section 2 or 3 of the Form I-9 and that therefore, it was reasonable to conclude that the attestations were valid as long as the same “entity” both reviews the original documents and completes the Form I-9 attestation. They also found that neither the regulations or the Form I-9 current at that time provided any additional guidance. Indeed, after fining ESSG, but before the Court made its decision, ICE changed the Form I-9 instructions to make it clear that the same person who examines the document must be the same person that signs the Form I-9. Employers who may be in the situation for Forms I-9 completed before 2013 should contact an immigration attorney to determine if the 5th Circuit decision affects their situation. See Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016).
Today, the U.S. Department of Justice (DOJ) increased the possible fines and penalties for employers with I-9 employment eligibility violations including the employment of unauthorized workers and/or employers who have violated the anti-discrimination provision of the Immigration and Nationality Act (INA). These increases are due to the Bipartisan Budget Act of 2015 which was enacted in late November 2015 and will take effect on August 1st for violations that took place after November 2, 2015.
Under the interim final rule, the minimum penalty for employment of an unauthorized worker will jump from $375 to $539 and the maximum penalty will jump from $3,200 to $4,313. Those with multiple violations may face a penalty of $21,563. I-9 paperwork violations will increase from a maximum of $1,100 to $2,156 while the new top penalty for unfair immigration-related employment practices violations will increase to $3,563.
I-9 and employment Immigration related violations are enforced by the DOJ through the Office of Special Counsel for Immigration-Related Unfair Employment Practices and the Office of the Chief Administrative Hearing Officer.
The Office of the Chief Administrative Hearing Officer (OCAHO) found International Packaging Inc., a Minnesota-based promotional marketing company liable for failing to prepare or present Forms I-9 for 21 of its employees and for substantive errors found in 73 Forms I-9. Form I-9 is used to confirm an employee’s identity and work authorization. Fines have yet to be levied but the government is arguing for baseline penalties of $935 for each violation. The judged stated that employers may be entitled to a “good faith” defense for paperwork technical or procedural violations but that defense has no application to substantive violations, such as those in this case. This is the second recent decision against a Minnesota employer by OCAHO. Last week, as we blogged, Golden Employment Group Inc. was found liable for over 465 Form I-9 violations.
Last week, a Mississippi based manufacturing company, Howard Industries agreed to pay a fine of $2.5 million for a variety of I-9 and other immigration violations as part of a plea in Federal Court. This case arises from a 2008 raid. What is most interesting is that Howard was a participant in the government’s highly touted E-Verify program. Seems like the program worked really well to protect this company from liability. A panacea, it is not.