OCAHO Reduces I-9 Fine by One-Third: USA v. Senox

OCAHO Reduces I-9 Fine by One-Third: USA v. Senox

[Full disclosure: my client, my case.]

"The penalties [ICE sought] were then aggravated based on the large size of the company, but the remaining factors were treated neutrally, so the final rate was $981.75 for each violation, or a total of $66,759. ICE’s forensic auditor considered Senox to be a large corporation because it had locations in eight states, one hundred and fifty-eight employees, and annual sales as of July, 2011 totalling $7,700,000. The company was sufficiently large to employ a human resources director who is responsible for employment paperwork. ... ICE’s proposed penalty is almost ninety percent of the maximum permissible. Penalties at or near the maximum, however, should be reserved for the most egregious violations. See New Outlook Homecare, 10 OCAHO no. 1210 at 4 (holding that a penalty consisting of eighty-five percent of the maximum permissible was unduly harsh). While the record is somewhat sparse, there are several factors favoring the employer in that there is no claim of bad faith or history of previous violations, and no showing beyond suspicion that any particular individual was unauthorized for employment. A penalty should be sufficiently meaningful to deter future violations, United States v. Jonel, Inc., 8 OCAHO no. 1008, 175, 201 (1998), but should not be unduly punitive; proportionality is key. United States v. Pegasus Rest., Inc., 10 OCAHO no. 1143, 7 (2012). Considering the record as a whole, limited as it may be, the penalties will be adjusted as a matter of discretion to an amount closer to the midrange of permissible penalties. For the fifty-four violations involving the company’s failure to timely prepare or present I-9 forms (Counts I and II) the penalties will be assessed at $700 per violation. For the fourteen defective I-9 forms (Counts III-VI) the penalties will be assessed at $500. The penalties total $44,800." - USA v. Senox, June 3, 2014.