How Often Does OCAHO Reduce I-9 Fines?
Reviewing the 2012 published cases by the Office of the Chief Administrative Hearing Officer (OCAHO) brought back memories of when I externed for a judge while in law school. I was offered a rare glimpse of the “behind-the-scenes” look into how cases were decided back then. The writing style and prose of these published OCAHO cases were clear and succinct, which I very much appreciated. Though I suspect the substance of the opinions probably interest our readers much more. Interesting trends emerged in my evaluation of the 2012 published cases worthy of highlighting below.
You’ll recall two months ago, we wrote an article regarding How to Fight an ICE I-9 Fine, Why Employers Litigate. In it, Josie Gonzalez, Attorney and Managing Partner of Gonzalez & Harris, a Professional Corporation, and Greg Wald, Senior Attorney at Squires Sanders in the Labor & Employment, Immigration practice group, gave us valuable insight as to how and why employers litigate proposed I-9 penalties levied on them by ICE (and OSC).
For what it’s worth, my unscientific review of the seven published cases indicated that every time an employer went before OCAHO, the civil fines were ultimately reduced (between 23-82%). (See the chart below.)
I’ll admit, seven cases, does not constitute a trend that OCAHO is consistently siding with employers but it is interesting to read about the analysis of how OCAHO arrives at its decisions.
No Single Method for Tabulating Penalty Amount
ICE recently updated its fine matrix page, accessible here. Although the I-9 Fine Matrix is a well-known secret, the instances when ICE determines civil penalties are to be mitigated and/or aggravated are not always clear cut. (This explains the number of cases that are reviewed by OCAHO.) From my review of the cases for this year (so far), it’s apparent that OCAHO digs deep into how ICE arrives at its final penalty amounts. It then proceeds to dissect each penalty amount to determine if the tabulation method was correct and fair. Given that each case poses different evidentiary issues, it’s safe to say that there is no single method to tabulate a penalty amount.
Allegations Must Be Supported by Evidence
Often, the cases will reflect what ICE or an Employer alleged happened even though the record is missing documentation to support those allegations. For example, ICE may allege that an employer’s failure to complete and retain I-9 Forms for its employees constitutes bad faith, which counts as an “aggravating” factor to increase the fine amount (according to the fine matrix). OCAHO, though, reasons that factual allegations are not enough. There must be sufficient evidence in the record other than allegations, to support actual bad faith by an employer.
Ability to Pay an Important Consideration
In penalty cases, often overlooked is the employer’s ability to pay a fine. In cases where the employer has filed bankruptcy and in recent years leading up to the I-9 penalty demonstrated a decline in revenue, ICE’s levying a large fine as a deterrent is futile given the financial hardship already faced by the employer.
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The published OCAHO cases provide us with a glimpse of how equity is administered but seemingly lulls us into a false sense of security. While OCAHO may have consistently reduced fine amounts for the published seven cases, it begs the question of what the true costs were for these employers. Unspoken are the time and worry in litigation, the cost of hiring legal counsel, the cost of lost productivity in producing documents, and much more. The question remains, how prepared is your organization for an I-9 audit?