02/01/2013 12:23:00 PM EST
OCAHO Reduces I-9 Fine from $22.4K to $9.6K; Employer 'Unaware' of I-9 Form
"The company’s answer to the complaint asked for reduction in the proposed penalties because the respondent is a small cafe unable to pay a fine of $22,440 as is requested. The answer notes that Imperial Valley, California, has the highest unemployment rate in the nation, that the restaurant had to close one location (of two) in 2010 because of the economy, and that the number of employees had dropped from twenty-four to seven. The company’s prehearing statement said that Ms. Caro was simply unaware of the I-9 form until the NOI was served, but that she did ask new employees for resident alien cards, government issued IDs, and driver’s licenses and that all the employees had proper documentation. No unauthorized aliens were found in the workforce. ... Proportionality is a critical factor in setting penalties. ... La Hacienda Mexican Cafe is found liable for twenty-four violations of 8 U.S.C. § 1324a(b) and 8 C.F.R. § 274a.2(b) and is directed to pay penalties in the total amount of $9600." - USA v. La Hacienda Mexican Cafe, Jan. 24, 2013.
[Ed. Note: The I-9 regime has been in place since 1986, over 25 years ago. One would think that all employers know about it. Yet the ALJ stated: "While I concur with the government’s conclusion that the violations are serious, I cannot concur in its suggestion that there is any lack of good faith shown. Our case law has long held that a poor rate of I-9 compliance is insufficient to show a lack of good faith absent some culpable conduct going beyond mere failure to comply. See United States v. Karnival Fashion, Inc., 5 OCAHO no 783, 477, 480 (1995) (modification by the CAHO). No such culpable conduct has been asserted here. The government concluded instead that “[t]he high percentage of substantive violations is indicative of the serious disregard for the employment eligibility verification requirements,” but in order to “disregard” a requirement, one has to be at least minimally aware of the requirement in the first place. There is not the slightest suggestion in the record that Ms. Caro had any knowledge of the requirement." La Hacienda at 3, emphasis added. It seems USCIS has some serious outreach yet to do!]