By Robert S. Groban, Jr., and Matthew S. Groban
The recent decision by the Chief Administrative Hearing Officer (“OCAHO”) in United States v. The Red Coach Rest., Inc., 10 OCAHO No. 1200 (2013)provides a roadmap for employers seeking to reduce fines sought by Immigration and Customs Enforcement (“ICE”) for Form I-9 violations. In Red Coach, the ICE complaint alleged that Red Coach: (1) failed to prepare Form I-9’s for nine employees within 3 days of their hire, and/or failed to present the forms to ICE upon request; and (2) failed to ensure proper completion of Form I-9’s for forty-one additional employees. The complaint requested penalties in the amount of $30,184.
The Administrative Law Judge (“ALJ”) reduced this penalty to $16,300 because the amount sought by ICE was too severe in proportion to Red Coach’s ability to pay, did not consider account of Red Coach’s history of no previous Form I-9 violations, and had no deterrent effect because Red Coach’s Form I-9’s now are handled by another company. In his decision, the ALJ noted that in determining the appropriate amount of civil penalties for Red Coach’s paperwork violations, he gave “due consideration … to the size of the employer, the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations.”
The Red Coach decision reminds hospitality employers of the potentially severe fines that can arise out of any failure to properly complete the Form I-9 paperwork, and of the need to train staff on the Form I-9 process. It also provides avenues for reducing ICE fine determinations through appeals to OACHO based on the particular facts of the case.