The Department of Justice, Office of the Chief Administrative Hearing Officer (OCAHO) assessed an I-9 related penalty of over $228,000 to a Georgia construction company.  This is one of the larger fines I’ve seen issued by Immigration and Customs Enforcement (ICE) for such violations, and it was even below what they originally assessed, which was a fine of nearly $332,000.  All this over paperworkviolations (i.e., failure to present and/or failure to properly complete) related to the Form I-9, the Employment Eligibility Verification form which all new hires must complete.

  • The issuance of the Notice of Inspection (NOI) by ICE was fueled by a damaging media story by the Atlanta Journal Constitution in 2010 in which a group secretly taped a foreman making statements about hiring undocumented workers.  ICE issued an NOI requesting Forms I-9 for a three year period as well as employment records, payroll data, wage and hour reports and other information.
  • ICE alleged two counts.  First that the company failed to ensure that 277 named employees properly completed Section 1 of the Form I-9 and/or failed to ensure that the company properly compelted section 2 of the Form I-9.  Second, that the company failed to prepared and/or present Forms I-9 for 87 employees. ICE initially requested a penalty of $332,813.25 with penalties of $981.75 per I-9 violation.  OCAHO Administrative Law Judge Thomas issued a final decision and order, finding the company liable for 338 of the violations alleged, but mitigating the total penalty to $650 for each violation in Count I and $750 for each violation in Count II, for a total civil money penality of $228,300.  See, United States of America v. M&D MasonryOCAHO Case No. 13A00023.
  • In Judge Thomas’ decision there was a discussion regarding determining the appropriate size of the company for purposes of assessing a civil penalty.  But what I found interesting is the fact that the company pre-signed over 100 Forms I-9, which could constitute a false attestation. In her decision, Judge Thomas states, “review of the company’s I-9 forms reflects what appears to be a wholesale execution by means of a rubber stamped signature in section 2 on February 20, 2008 of a large number of what must have been at the time otherwise blank I-9s.”  It furthermore appears that many of these forms listed no documents in Section 2 and no start dates. Judge Thomas goes on to say, “It is difficult to avoid the inference that the forms were prepared in bulk in advance and used as needed for subjsequent hiring.”  See United States v M&D Masonry, 10 OCHAO no. 1211, p. 12.

Lessons Learned

As a practitioner in the field, I know that company’s often struggle with issues related to Form I-9 compliance stemming from a variety of reasons.  But employers can learn a few lessons from this case.

  • Know what those in the field or on-site are doing (specifically those with hiring authority) because their actions can hurt the company.  Also, no one other than principals or a designated spokesperson should be authorized to speak with the media. This case was a little different since the individual allegedly secretly taped the foreman, but have a media plan in place so that all media requests are funneled to the appropriate individuals within the company.
  • Often times, especially where there is high turnover or high volume hiring, employers try to streamline the I-9 process in different ways.  One way may be to pre-populate the employer information section in section 2 of the Form I-9.  That can be acceptable depending on how it is done, but it is never acceptable to pre-sign section 2 of the Form I-9.
  • Have a Form I-9, properly completed, for each current employee.  Civil paperwork penalties for the Form I-9, which range from $110 to $1,000, can quickly add up due to aggravating factors and therefore they are never really $110 per violation.