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In United States v. Desert Canyon Golf, the Office of Chief Administrative Hearing Officer (OCAHO) was only focused on the amount of penalties to be assessed against the company for its I-9 errors. Previously, OCAHO determined Desert Canyon had committed 129 violations (click here to see my other blog post on that decision). In this decision, OCAHO assessed penalties of $57,650, which was a significant reduction from Immigration and Customs Enforcement’s proposed penalties of $113,742.
To calculate the penalty, ICE set the baseline at $935 per violation based on an 87 percent error rate. ICE mitigated the penalties by 10 percent based on the small size of the business and the lack of history of previous violations. However, it aggravated the penalties by 5% for the seriousness of the violations. Thus the penalties were set at $888.25 per violation.
Desert Canyon argued that the proposed penalties were “excessive, unwarranted, and completely inappropriate.” It stated it essentially committed only one error – failure to sign Section 2 of the I-9 forms in numerous instances. Desert Canyon stated it did not understand the directions on how to complete the I-9 form. Additionally, it asserted its enrollment and use of E-Verify is evidence of its good faith effort to follow the law.
Ignorance of the law is not a viable defense. Furthermore, OCAHO found Desert Canyon did not commit just a single error; rather, it committed the same error many times. Finally, OCAHO stated participation in E-Verify “does not relieve the company from its obligation to properly complete I-9s for its employees.”
OCAHO found that, except for the seriousness of the violations, the statutory factors were in the employer’s favor. Therefore, OCAHO decided to adjust the penalties to the midrange - between $400 and $500 per violation.
The 50% reduction in penalties is consistent with the average reduction after litigation before OCAHO.
A copy of the decision is available here. Cite as: U.S. v. Golf International d/b/a Desert Canyon Golf, 11 OCAHO no. 1222 (2014).
In OCAHO’s third decision concerning the amount of penalties that Crescent City Meat Company owes for its failure to prepare/present I-9 forms for 15 employees, it assessed the company $6,750 in penalties.
As discussed in prior articles, OCAHO ALJ Ellen K. Thomas initially decided Crescent City only owed $1,650 in civil penalties because ICE had failed to engage in good faith during the investigation and litigation. ICE appealed to Chief Administrative Hearing Officer (CAHO) Robin M. Stutman, who found ALJ Thomas had drawn this conclusion from a misreading of the record. Thus, the CAHO vacated the decision and remanded for reconsideration of the penalties.
Since Crescent City’s error rate was 50% or greater, the baseline penalty was set at $935 per violation. ICE mitigated the penalty by 5% based on Crescent City’s small size, but aggravated the penalty by 5% for the seriousness of the violations. Thus, ICE set the total penalties at $14,025 ($935 x 15 violations).
Crescent City raised three arguments for a reduction in the penalties – 1) it was unaware of the I-9 requirement, 2) the violations were not that serious, and 3) the company suffered losses over the last 25 years. Crescent City did not provide any records to support its arguments.
In this decision, ALJ Thomas found ICE’s proposed penalties to be excessive. Although the ALJ found the violations to be serious, she found the remaining statutory factors – size of the company, good faith, employment of unauthorized workers and history of violations – to be favorable to Crescent City. The ALJ especially found Crescent City’s small size to be “precisely the type of business Congress intended to benefit from the general public policy of leniency to small entities” under the Small Business Regulatory Enforcement Fairness Act. Based on this analysis, the ALJ set each of the 15 violations at $450 for a total penalty of $6,750.
This probably ends the Crescent City saga although ICE could file another appeal to CAHO. This appears unlikely. Thus, after all of the litigation has concluded, Crescent City had its penalties reduced by a little more than 50%, which is slightly more than the average reduction by OCAHO.
A copy of this third decision is available here. Cite as United States v. Crescent City Meat Company, Inc., 11 OCAHO no. 1223 (2014) .
By Bruce Buchanan, Siskind Susser
For several years now, the U.S. Department of Justice’s Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices, has published a helpful guide for employers known as the DOs and DON’Ts of using E-Verify. Building on that same information, the OSC recently released a companion guide known as the “Fact Patterns Flyer”, which includes real examples of employer mistakes in the hiring and firing process, Form I-9 and E-Verify processes, and INA anti-discrimination compliance.
Examples were sourced from cases that OSC investigated in the last four years, and here are some excerpts:
-What if an employer refuses to hire workers who look or sound ‘foreign’?
“Employer agreed to pay $18,550 in back pay to a non-U.S. citizen….”
-What if an employer asks Permanent Residents for a new green card when the current card expires?
“Employer agreed to create a $100,000 back pay fund to compensate terminated workers and to pay $175,000 in civil penalties…”
-What if an employer retaliates against a worker who asserts rights protected under the INA anti-discrimination provision?
“Employer paid $1,800 in back pay and $3,000 in civil penalties…”
-What if an employer prefers to hire exclusively U.S. citizens when there is no law, rule or regulation requiring employees be U.S. citizens?
“Employer agreed to pay $100,000 in civil penalties…”
These scenarios show why employers, both large companies and small businesses, should have immigration policies in place, such as an I-9 Compliance Policy and Anti-Discrimination Policy, to avoid using separate standards when requesting documentation from U.S. citizens and non-U.S. citizens. It is also prudent for employers to periodically self-audit under the supervision of an immigration compliance attorney to help avoid potential errors in the hiring, firing, and E-Verify processes.
For the full examples, you can access the OSC Fact Patterns Flyer (Rev. June 2014) at: http://www.justice.gov/crt/about/osc...patterns_2.pdf
For the most recent version of DOs and DON’Ts of using E-Verify, visit this link: http://www.justice.gov/crt/about/osc...sanddonts3.pdf
Stay up-to-date with Siskind Susser's Immigration Compliance blog for employers at www.employerimmigration.com .
ABOUT THE AUTHOR: Bruce Buchanan is an attorney with the law firm of Siskind Susser P.C. - www.visalaw.com - a full service U.S. immigration law firm representing employers and individuals nationwide for over 20 years. You can also follow this author on social media via Facebook and on Twitter @BuchananVisaLaw .
USCIS continues to make improvements to its E-Verify system, which they refer to as enhancements. Recent enhancements to the system include:
1. Notifying a company when the user enters a case that has the same Social Security number as another case entered in the last 30 days. This feature will allow E-Verify users to catch and correct duplicate cases early in the case creation process;
2. Prompting users to update or validate their email and phone number when passwords expire every 90 days; and
3. Requiring users to complete a refresher tutorial prior to granting of full functionality.
If your company does not currently use E-Verify, I would recommend consulting with an immigration compliance attorney as to its advantages and disadvantages. If you happen to be in a state with mandatory E-Verify and your company has not enrolled, you should consider enrolling immediately or potentially face a variety of state sanctions, including loss of your business license.
The E-Verify enrollment page can be found here.
By Bruce Buchanan, Siskind Susser
The Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices has settled a case with Commercial Cleaning Systems, a janitorial services company based in Denver, Colorado. The agreement resolves claims that the company discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act (INA).
The investigation was initiated based on a referral from U.S. Citizenship and Immigration Services (USCIS). The investigation found Commercial Cleaning Systems required work-authorized non-U.S. citizens to present specific documentation issued by the U.S. Department of Homeland Security in order to verify their employment eligibility, while U.S. citizens were permitted to present their choice of documentation.
The INA’s anti-discrimination provision prohibits Commercial Cleaning Systems’ actions. Specifically, the anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the hiring and employment eligibility verification process based on their citizenship status or national origin.
Under the settlement agreement, Commercial Cleaning Systems will pay $53,550 in civil penalties, create a $25,000 back pay fund to compensate individuals who may have lost wages as a result of the company’s discriminatory document practices, and be subject to monitoring of its employment eligibility verification practices for one year.
Referrals from USCIS, such as in this case, are based on review of E-Verify data by the Monitoring and Compliance (M&C) Branch of USCIS. Apparently, M&C has been busy in 2014 as most of the OSC settlements have been initiated on referrals from USCIS.
A copy of the settlement agreement is available here.
Updated 06-30-2014 at 11:24 AM by BBuchanan