OCAHO Reduces I-9 Fine from $80K to $30K: USA v. A&J Kyoto Japanese Restaurant

"Potential penalties in this matter range from $10,010 to $100,100, and the government seeks $79,942.50. A&J is, as it says and as the record reflects, a small restaurant in the rust belt that has a high employee turnover rate, that did not employ any unauthorized aliens, and that has no history of previous violations.  While the violations are serious, all the other statutory factors weigh in the company’s favor, and a penalty constituting 135% of the company’s ordinary business income for 2010 and more than 60% for 2011 is excessive on its face in light of the record as a whole.  See United States v. H&H Saguaro Specialists, 10 OCAHO no. 1147, 5 (2012).

A penalty should be sufficiently meaningful to accomplish the purpose of deterring future violations, United States v. Jonel, Inc., 8 OCAHO no. 1008, 175, 201 (1998), without being “unduly punitive” in light of the respondent's resources, United States v. Minaco Fashions, Inc., 3 OCAHO no. 587, 1900, 1909 (1993).  Here the proposed penalty is close the maximum permissible by law, and way out of proportion to the nature of the business and the degree of culpability shown.  See United States v. Fowler Equip. Co., 10 OCAHO no. 1169, 6 (2013) (finding that maximum penalties should only be reserved for the most egregious violations).

For the nine violations in Count I, the penalty will be set at $425 each, and for the eighty-two violations in Count II, the penalty will be set at $325 each.  The total penalty thus is $30,475, an amount sufficiently significant to motivate a small restaurant business to comply in the future.  The parties are free to negotiate a payment schedule to avoid the impact of a lump sum payment." - USA v. A&J Kyoto Japanese Restaurant, June 13, 2013.