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By Bruce Buchanan, Sebelist Buchanan Law
OCAHO issued another recent decision in U.S. v. East Coast Foods, Inc. d/b/a Roscoe’s House of Chicken N Waffles, 12 OCAHO no. 1281 (2016), wherein it reduced ICE’s proposed penalty of $38,708 to $18,350 for a variety of reasons.
As it sounds, Roscoe’s is a small restaurant in California which got served with a Notice of Inspection on June 19, 2013. By July 29, ICE served Roscoe’s with a Notice of Discrepancies for two employees. Roscoe’s resolved those situations.
At this point, ICE served Roscoe’s with a Notice of Intent to Fine (NIF) alleging in Count I - 31 violations of failing to ensure employees properly completed Section I, Count II – one instance where the employee failed to properly complete Section 2, and Count III – failure to prepare and/or present I-9 forms for four employees. ICE sought a penalty of $38,709 based upon a baseline penalty of $935, which was enhanced by 5% each for the seriousness of the violations, its lack of good faith and employment of unauthorized workers.
However, it refused to mitigate the fine for being a small business even though it qualified as such with 60 employees. The enhancement for unauthorized workers was mystifying because ICE failed to allege the employment of any unauthorized workers.
Of the 31 violations in Count I, the employees failed to check an immigration status box – a blatant violation. In Count II, the employer only recorded a List C document and failed to record an accompanying List B document. Concerning Count III, all parties agreed no I-9 forms were presented for four employees.
Concerning the five aggravating / mitigating factors, OCAHO awarded a 5% reduction for Roscoe’s being a small business. On lack of good faith, it is well-known case law that a company’s poor rate of compliance does not equal bad faith. Thus, OCAHO declined to aggravate the penalty by 5% due to bad faith. OCAHO agreed the violations were serious; thus, the 5% enhancement.
Overall, OCAHO believed a lower fine was appropriate and assessed the penalties accordingly – Count I - $500 each x 31 = $15,500; Count II - $450 for 1 violation; and Count III - $600 each x 4 = $2,400. Thus, OCAHO assessed a penalty of $18,350.
By: Bruce Buchanan, Sebelist Buchanan Law
OCAHO issued a decision in U.S. v. Safe-Air of Illinois, Inc., 12 OCAHO no. 1270 (2016), finding Safe-Air committed all of the alleged violations but reduced the fine from $34,969 to $18,450.
Safe-Air is a family-owned business in Chicago where they perform sheet metal work and manufacturing. It employs 42 workers. After a Notice of Inspection, Immigration and Customs Enforcement (ICE) issued a Notice of Intent to Fine alleging 39 violations within three separate counts: Count I - failed to prepare I-9 forms – 2 violations; Count II - failed to properly complete Section 2 of the I-9 forms - 30 violations; and Count III - failed to properly complete Section 2 of the I-9 forms for 7 unauthorized employees. Safe-Air stipulated to liability on all counts.
The question before the Administrative Law Judge was what the appropriate fine was. ICE stated there was a 95% error rate, which equals $935 per violation. The baseline penalty was mitigated by 5% due to Safe-Air being a small business. Thus, ICE sought a baseline penalty of $888.25 per violation, equaling $34,969.
Safe-Air argued that it was in substantial compliance of the law even though it had a 95% error rate. ICE found this argument to be incredulous and OCAHO agreed.
Safe-Air also asserted it was entitled to greater mitigation based upon its good faith and no prior history of immigration violations. It also argued it could not afford to pay the penalty as it already owed $40,000 to the IRS and had unpaid property taxes. ICE responded that the debt to the government showed a “pattern of consistent disdain and disregard for its legal and financial obligations.” Furthermore, ICE questioned the validity of Safe-Air’s financial records because they were neither audited nor certified. Finally, ICE pointed out the proposed fine was less than 1% of Safe-Air’s total sales in 2014.
OCAHO found that because the company was small and did not demonstrate any bad faith or have any history of violations, leniency was favored. Plus, OCAHO agreed with Safe-Air that the company had financial problems; thus, proposed penalties were “unduly harsh”. Based upon this reasoning, OCAHO found the following: Count I violations - $500 each; Count II violations - $450 each, and Count III violations - $550 each.
As is so often the case, if Safe-Air had conducted a timely internal I-9 audit, many of these violations could have been located and fixed.