$46,575 Civil Penalty – The High Cost of Form I-9 Document Abuse

East Coast employers find themselves battling two storm fronts this fall. On one front, Hurricane Sandy is intent on unleashing her powerful winds and rains. We wish everyone in the affected zones safe passage through and strong refuge from this storm for a quick recovery. On another front though, many employers are battling a more pragmatic storm; that of I-9 compliance. Some might even call this a protracted battle. Last week, the Justice Department released another press release detailing its recent settlement with Advantage Home Care, LLC, a home health care provider based in Hackensack, New Jersey. You might have already guessed from our title that the basis for a claim of employment discrimination was document abuse.  (Read about document abuse here and here.)

The Facts

According to the press release, during its employment eligibility verification (Form I-9) process, Advantage Home Care allegedly required its new hires who were lawful permanent residents to present more or different documents than other employees. The employer had refused to employ a new hire, whose social security number generated a false-negative on a background check, even after the employee had resolved the issue with the Social Security Administration. The pattern of practice of requesting different or more documents from a legal permanent resident was uncovered after this employee had filed a complaint with the Department of Justice’s Civil Rights Division Office of Special Counsel (OSC).

The Settlement

Advantage Home Care agreed to pay $1,633 in back wages to the complaining employee and$46,575 in civil penalties payable to the government.

Glaring Issues to Beware

It’s not immediately apparent when reading the press release or the settlement agreement, but there were a host of additional costs this employer faced (faces) in navigating this recent battle with the OSC.

  • Cost in lost productivity from having to stop productive work in order to respond to the charge and investigation by OSC;
  • Cost in service fees to hire a “Human Resources and Labor Consulting Company” to assist in providing interactive training to all managers and the owner;
  • Cost in loss of time to train all managers and the owners;
  • Future costs in loss of time spent identifying potential victims from the employers past discriminatory employment practices;
  • Future cost in payment of back wages to potential victims;
  • Future cost of responding to OSC queries, reports, Form I-9 audits, and more.

Some may argue that a civil fine of $46,575 for an alleged discriminatory employment pattern or practice based on document abuse seems excessive. But is it? Based on the civil penalties levied by the OSC this year, one has to wonder if the penalties significantly deter employers from breaking the law. Is it a matter of education, training, and/or awareness? Or must there be a complete overhaul of how employers view the Form I-9 process?

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