Anatomy of a Form I-9 Audit News Release
If you’re paying attention to Form I-9 audits and penalties (and who isn’t these days), you’re no doubt familiar with the occasional worksite enforcement “News Release” published by Immigration and Customs Enforcement (ICE) on its public website. During the past 2.5 years, ICE has posted over 100 of these news releases (see them all here), covering a wide range of recent worksite enforcement initiatives, partnership announcements, and of course, penalties and fines assessed against corporate wrong-doers. Some of the more infamous releases entail million dollar fines, employer conspiracies, and asset forfeiture – all the necessary ingredients for a juicy news story. Yet, not all of these announcements involve bad-acting employers who are brazenly ignoring their I-9 responsibilities. As this blog will briefly explore, employers can also be penalized for a variety of simple “technical failures” or paperwork violations which are not necessarily an indicia of wrong-doing or even negligence. While many of these employers settle their I-9 fines behind the scenes, a few of them end up on the “front pages” of ICE’s enforcement rap sheet – for the entire world to see. ICE Fines New England Companies Hiring Unlawful employees Just last month, ICE issued its latest worksite enforcement news release, which broadly describes the I-9 violations of 14 New England employers, who were assessed with a combined $285,000 in fines during this past fiscal year. Going one step further, ICE also singled out the following employers and noted their specific fine amounts:
- Jasper Wyman & Son, a company in Milbridge, Maine, accounted for $118,000 of the fine settlements;
- Commercial Cleaning Service of Allston, Mass., was ordered to pay a $100,000 fine; and
- D’Agostino Associates, Inc., Newton, Mass., was fined $22,792.
The intent of these publications seems fairly obvious: to reiterate the importance of maintaining a legal workforce, demonstrate ICE’s commitment to enforcing that goal, and perhaps, to shame (just a little) those organizations or individuals who have been caught red-handed. Sure, the numbers themselves may seem minor, but we must remember that these figures do not take into account the fees spent for attorneys, accountants, or even PR consultants – who inevitably may need to come in to “rehabilitate” the company’s tarnished image. Moreover, the real zinger for many organizations is not the fine amount listed above, but rather the notion that the employer was involved in “hiring unlawful employees.” As we’ve seen in the cases of Chipotle and American Apparel, this can open up an entirely new and different can of worms. The Rare Public ObjectionWe don’t see this very often. Shortly after the ICE press release, Jasper Wyman & Sons, a major blueberry producer and one of the “named” companies, publicly complained about the timing and content of the announcement. According to the Bangor Daily News, Edward Flanigan (President of Jasper Wyman & Sons) accused ICE of timing its press release to “scare everybody in Maine agriculture.” He also went on to say that the ICE news release failed to note that the I-9 violation was 5 years old, and that it was solely based on paperwork errors. In particular, Flanigan explained that the vast majority of errors came from the failure of the I-9 verifier to enter the date that the employee started work in section 2 of the I-9 form. Flanigan further explained, “The problem is that we hire these workers sometimes up to two weeks before they actually start work, and the person filling out the form had no idea when the worker would actually be working on the harvest.” It’s unclear from the news story whether there were additional errors or if Jasper & Wyman made any attempt to correct the mistakes after receiving the Notice of Intent to Fine (NOIF). Under the statute, employers are afforded a 10-day period to correct technical or procedural verification failures, such as a missing hire date. “We didn’t the follow the forms, so shame on us.” The public reaction was quite different from Kleen Drycleaners and Linen Service, a New Hampshire company fined during the last fiscal year as well. According to the New Hampshire Union Leader, Kleen employs 110 people in the New England area, providing laundry service for hospitals and clinics. The company’s president, Greg Gosselin, was quoted as saying that he “didn’t have a problem with what they did” and “[w]e didn’t the follow the forms, so shame on us.” According to Gosselin, the company had mostly “clerical” errors such as missing birth dates and the like. The company declined to comment though on the amount of the assessed fine, and as with Jasper, it’s unknown whether there was any attempt made to remediate the errors. Who is the target? As we’ve discussed in the past, ICE frequently emphasizes that first and foremost it will target organizations suspected of employing unauthorized workers through credible leads. While there is no reason to doubt this, it’s important to note that we’ve also been seeing employers with seemingly “squeaky clean” I-9 records receive the dreaded Notice of Inspection, perhaps due to some other related compliance issue or failure. Regardless of the cause, the ultimate impact is the same – the mad dash to get your paperwork in order and minimize those potential fines (as well as the potential public disclosure!) Lessons for Employers If you read back through all of the ICE news releases, you will see that their message has remained fairly consistent: employers are ultimately responsible for ensuring their employees are authorized to work in the U.S., and ICE takes this responsibility very seriously. In light of the agency’s increasing I-9 audit activity and push for greater compliance with the revamped IMAGE program, employers would be well-served to take matters into their own hands now to ward off potential problems.