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I-9 E-Verify Immigration Compliance

Roscoe's Big Mistakes

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By Bruce Buchanan, Sebelist Buchanan Law

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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.

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