2012 OCAHO Decisions – Trends Every Employer Should Know
[Editor’s Note: Today’s blog is authored by Bruce E. Buchanan, an Attorney at the Nashville Office of Siskind Susser, P.C.] In 2012, the Office of Chief Administrative Hearing Officer (OCAHO) issued 21 decisions. Of the 21 decisions, 11 were substantive decisions concerning alleged violations of the Immigration Reform and Control Act (IRCA), six decisions involved Office of Special Counsel issues and four decisions were procedural. There are several trends or common themes in the 11 substantive decisions.
The most obvious trend is the level of success that employers had in reducing the amounts of the fines/penalties sought by Immigration Customs and Enforcement (ICE). In seven of the 11 cases, the issue of the amount of fines was litigated and Employers averaged a reduction of approximately 45%. Below is a chart setting forth the amount sought and amount accessed:
The most common factors in the reduction of the fine were an employer’s ability to pay and/or the small size of the company. OCAHO cited these factors in all of the above cases except Stanford Sign & Awning (where there was the smallest reduction).
When ICE sought enhancements for any of the five aggravating factors: (1) size of the business of the employer, (2) good faith of the employer, (3) seriousness of the violation(s), (4) whether or not the individuals involved were unauthorized aliens, and (5) any history of previous violations by the employer, OCAHO tended to agree. However, OCAHO did not agree with ICE on the involvement of unauthorized aliens. On the two occasions that ICE sought this enhancement, in U.S. v. Forsch Polymer and U.S. v. Stanford Sign & Awning, OCAHO found that ICE had failed to prove the employers actually employed unauthorized workers, only that ICE suspected the employers to have employed unauthorized workers.
In addition, employers tended to have success when challenging I-9 fines on legal grounds. In U.S. v. Santiago’s Restaurant, OCAHO held that a business partner with meaningful control of a company did not have to complete an I-9 form. OCAHO also held in U.S. v. Associated Painters that the employer did not have constructive knowledge of the employment of unauthorized workers. In U.S. v. Ronning Landscape, OCAHO found that the employer did not have a responsibility to retain I-9s when its only role was that of a payroll service. Finally, in two cases, U.S. v. Forsch Polymer and U.S. v. Stanford Sign & Awning, OCAHO found ICE was alleging technical violations without having first provided employers an opportunity to correct the errors.
Worth mentioning, though, were several occasions where employers asserted legal arguments contrary to prior case law holdings. Those arguments tended to be summarily dismissed. One of the surprising observations is how few cases have been litigated before OCAHO in light of the level of success achieved by employers. With the increase in the number of cases from 2010 and 2011, this fact might be changing.
Bruce E. Buchanan is an Attorney at the Nashville Office of Siskind Susser, P.C. He represents individuals and employers in all aspects of immigration law, with an emphasis on employer immigration compliance, as well as employers in employment/labor law matters. He is Past-Chair of the Tennessee Bar Association’s Immigration Law Section from 2011 to 2012 and has been the editor of the TBA’s Immigration Law Section Newsletter and the TBA’s Labor and Employment Law Section Newsletter since 2009. Mr. Buchanan also serves on the Board of Directors for the Nashville International Center for Empowerment (NICE) and the United Cerebral Palsy of Middle Tennessee and Middle Tennessee Seminole Club. He is an associate member of the Mid-Tennessee Chapter of the Associated Builders & Contractors (ABC).