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After three years of litigation, California based farming and packing company succeeds in significantly reducing their overall penalty only because ICE makes a procedural mistake during the I-9 penalties review hearing. The company still ends up paying $480 per I-9, plus attorney fees for the cost of defending the 3 year long case.
In 2012, ICE fined California-based Foothill Packaging Inc. $168,455 for I-9 related violations. There were a total of 382 Forms I-9 in dispute. Of the 382 alleged violations, 44 were paper violations, 1 was a knowingly hiring an unauthorized worker violation, and 337 were a failure to record document information in section 2 violations. The fines issued were set at $440 per I-9, a base rate for violations occurring in 2012. Newer cases show that ICE is currently setting fines at over $1,000 per I-9.
In the hearing to the OCAHO court, the company argued that they offered to provide ICE with photocopies of the 337 workers’ employment authorization documents, but that the first ICE agent in charge of the audit refused to accept the evidence. This set the stage for ICE eventually making a mistake in failing to refute the employer’s defense regarding the 337 forms with missing section 2 document information.
The Judge did not reduce the I-9 fines, but she specifically said she had to throw out the fines for the 337 forms missing the section 2 information because ICE failed to specifically respond to the employer’s defense.
The employer ended up paying $2,200 for the knowingly hiring of the unauthorized worker; $480 per I-9 for different paperwork procedural errors; plus attorney fees for almost 3 years of litigation.
As with many I-9 cases, fines and attorney fees could have been avoided or greatly reduced by simply training HR and management. Although the additional cost of litigation in this case ended up reducing the overall penalties for the company, is this a risk your company wants to take? Can you count on ICE making a procedural mistake again to avoid hundreds of thousands of dollars in penalties plus attorney fees?
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