Office of the Chief Administrative Hearing Officer recently upheld fine that was imposed on a Colorado based restaurant for failing to prepare or present a Form I-9 upon request. The Department of Homeland Security, Immigration and Customs Enforcement (ICE or the government) filed a one count complaint against the firm for incomplete or missing I-9s. The restaurant failed to fill out any I-9′s for 134 hired employees over a three year period and of the 134 employees, four were not authorized to work. Federal law requires employers to complete I-9 forms for all new employees and then to retain those forms for the duration of employment and for a period of time after termination.
ICE first calculates a baseline penalty and violations are divided into six categories depending upon the percentage of I-9s that are missing or have substantive violations. The history of previous violations and the presence of unauthorized individuals in the workforce are two of the five factors that must be considered in assessing the appropriate penalties. The remaining factors to be considered are the size of the business of the employer, the good faith of the employer, and the seriousness of the violations. In the case of this firm, the case falls into the sixth of those categories in which 50% or more of the I-9 forms are missing or defective. Moreover, the firm was found to have hired four unauthorized workers in the past twenty years which brought about further negative image for the firm.
After the hearing from all parties concerned, OCAHO finally imposed a fine of $981.75 for employing unauthorized workers, but reduced the remaining 130 violations $350 each for missing I-9s bringing a total penalty of $49,427 for the firm.