Immigration Law

MN Staffing Company Hit With $227K I-9 Fine: USA v. Employer Solutions

Noteworthy: "The parties do not dispute, and the record clearly reflects, that ESSG II’s standard operating procedure was for its personnel in Edina, Minnesota to sign the section 2 attestation after reviewing copies of the employees’ documents without ever seeing the individuals whose documents they examined. ESSG II acknowledges this procedure and describes it in detail. The problem with this procedure is that it does not comply with the requirements of the employment eligibility verification system. ...

It is simply impossible, moreover, for a payroll administrator in Edina, Minnesota to determine whether a document reasonably appears to relate to an individual when the administrator never saw the  individual and the individual only presented original documents to a different person more than a thousand miles away in El Paso, Texas. It is unexceptional black letter law that the knowledge of a principal may under appropriate circumstances be imputed to an agent, and vice versa. Restatement (Third) of Agency Intro. (2006). Our case law recognizes in addition that where a corporate manager reviews specific records, the manager may properly testify to the facts reflected therein. See Stubbs v. DeSoto Hilton Hotel, 8 OCAHO no. 1005, 148, 155-56 (1998). Nothing in the case law or in the Restatement suggests, however, that this authorizes the principal or the agent to attest under oath that he or she personally performed actions that the individual did not in fact perform. ESSG II points to no provision of agency law that would endorse such a result. The attestations made in section 2 of these I-9s are patently false.

An employer does not substantially comply with the employment eligibility verification system by completing a false certification, and nothing in the E-Verify system justifies such a practice. Neither can use of the E-Verify program excuse a failure to properly complete section 2 of the I-9 forms; in fact, the first requirement of the E-Verify system is for the employer to properly complete an I-9 form. The affirmative defense provided by 8 U.S.C. § 1324a(b)(6) is unavailable to ESSG II because it applies only to technical or procedural violations, not to substantive violations. The creation of false section 2 attestations is not a technical or procedural violation. ...

The record reflects that ESSG is a sizeable company. In response to the government’s motion, the company said it has six to eight thousand temporary employees on its payroll, and its 2013 tax return reflects gross income of $144,830,081. While no unauthorized workers were identified and no previous history was alleged, the violations are far more serious than ESSG II acknowledges. Notwithstanding ESSG’s characterizations, ICE does not seek penalties here for the company’s failure to sign a few I-9s or failure to enter a date on many of its I-9 forms. The government seeks relief because the company systematically executed false attestations in section 2 of 242 I-9 forms. These violations are exceedingly serious because the section 2 attestation is appropriately described as “the very heart” of the verification process. United States v. Acevedo, 1 OCAHO no. 95, 647, 651 (1989). ESSG II’s attempt to compare itself to employers that failed to sign a few I-9 forms or to enter dates on some of the forms is wholly inapposite. ...

[T]here is no way that the knowing creation of false attestations in section 2 of Form I-9 can be characterized as objectively reasonable.  Considering the record as a whole and the statutory factors in particular, I find no compelling reason to adjust the penalties set by the government in this case. The penalty for failure to present an I-9 for Norma Rosas is $981.75. The penalties for the false attestations in section 2 of the I-9s for the remaining 242 employees will be $935 each, totaling $226,270. Penalties will accordingly total $227,251.75. ...

The company’s conduct in discovery did not conform to the standards expected of parties in this forum. After stonewalling all the interrogatories and document requests with boilerplate objections until after the close of discovery, eventual compliance was evidently grudging and untimely. The fact that no sanctions are imposed for this conduct should not be read either as approval of such cavalier tactics or as precedent for immunity from sanctions for any similar abuse of the litigation process by subsequent litigants." - USA v. Employer Solutions Staffing Group II, LLC, Jan. 20, 2015.  (Emphasis and links added.)