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I have written previously about I-9 compliance and the need for employers to have new hires complete I-9 forms, as well as producing evidence that they are legally eligible to work in the United States. The administration has taken the position that, so long as an individual presents a document, regardless of whether it could possibly constitute a fraud or forgery, it should be taken at face value.
However, what is given with one hand is taken away with the other. The US Department of Justice’s Office of the Administrative Hearing Officer has issued two decisions which place the onus on the employment.
In the first case, the Immigration Customs Enforcement (ICE) fined a restaurant $77,000, claiming that it failed to prepare I-9 forms for more than 80 workers, failed to ensure that others completed their forms property, and hired 17 workers knowing that they lacked authorization to work. The company claimed that it could not be held liable because it did not own the restaurant at the time of the violations. The administrative law judge rejected this defense based on the fact that the original owners retained an interest in the company and continued to manage it.
In the second decision, a fine of over $228,000 was sustained against a masonry company for I-9 violations. Following an investigative report by a newspaper, ICE charged it with failing to secure correctly completed I-9 forms from over 270 employees and failing to obtain any I-9 form from 85 others. The employer contended that there were technical violations and that it had limited financial resources. Both arguments were rejected. The administrative law judge placed great weight on the number of involved employees; in any hospitality or construction entity, such numbers would be consistent with the nature of the business.
I-9 compliance is yet another obstacle that employers must contend with. These decisions illustrate the risk associated with faulty risk management policies. Clearly, if you provide a new hire with an I-9 form and it is not completed, that individual should never be permitted to begin work! Particularly if a business is ramping up for a new project, it is extremely easy to hire first, try to comply later and then completely forget about it.
Another point that I want to underscore is liability for failure to comply with I-9 rules. In any merger, acquisition or sale, liability for compliance deficits should be clarified and the risk allocated to a party. Understand that, in the event that ICE investigates and requires you to discharge undocumented workers, your ability to fulfill the terms of your contracts with third parties could be in jeopardy.
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