On June 9, 2020, the Office of the Chief Administrative Hearing Officer (OCAHO) within the Department of Justice's Executive Office for Immigration Review issued a decision, United States v. 1523 Avenue J Foods, Inc. d/b/a 7-Eleven Store No. 36802, 14 OCAHO no. 1361 (2020) reducing Respondent's (7-Eleven) fine from $51,298 to $28,043 for Form I-9, Employment Eligibility Verification, violations. While this represents an approximate 46% reduction, the resulting fine was still more than 4 times the $6,380 suggested by the 7-Eleven as an appropriate fine.
All U.S.employers are required to verify the identity and employment eligibility of their employees and are mandated to retain the completed Forms I-9 for three years, or one year from the date of employment termination, whichever is later. U.S. Immigration and Customs Enforcement (ICE) may examine the Forms I-9 of an employer and issue fines, civil and/or criminal penalties for failing to complete, improperly completing, or failing to retain the required Forms I-9. OCAHO hears cases brought by ICE alleging Form I-9 violations by employers and seeking monetary penalties when the parties are unable to come to a negotiated settlement with regard to liability and/or an acceptable fine amount.
In this case, only 13 Forms I-9 were presented to ICE out of the 41 the 7-Eleven was required to produce. One of the 13 was prepared incorrectly and 28 forms were missing completely resulting in a total of 29 violations. ICE sought to levy a fine of $1768.90 per violation resulting in a total fine of $51,298. The 7-Eleven suggested a fine of $6,380 asserting the affirmative defense of impossibility for the missing 28 forms claiming their store basement suffered flooding destroying the missing I-9 forms. Recognizing that "impossibility" could form the basis of a valid affirmative defense, the Court found the party alleging such a defense, "must provide evidentiary materials to establish that there is a genuine issue of material fact." And, in this case, the 7-Eleven failed in that regard.
The 7-Eleven presented an affidavit from its owner with generalized, unsupported allegations along with undated photographs of trash in a basement all of which the Court found unpersuasive: "[t]he evidence provided by Respondent raises an issue as to whether there was water damage in the store basement." In other words, what the Court heard was, "the dog ate the missing I-9s!" The Court rejected this affirmative defense and found the 7-Eleven liable for those 28 missing forms. Nevertheless, the Court considered numerous factors and exercised its discretion lowering the fine amount per violation to $967, resulting in a total fine of $28,043 for the 29 violations.
This case demonstrates just how quickly fines can accumulate especially when the number of violations exceeds 50% of the total required forms. Even with a generous reduction of 46% per violation, this employer was still liable for close to $1000 per violation. Additionally, this case demonstrates just how important good record-keeping and best practices for Forms I-9 completion could have helped save this employer thousands and thousands of dollars. The Court noted the 7-Eleven failed to assert that the missing forms were completed, that it was their regular practice to complete the Form I-9 for each employee and they were even unsure where the forms were kept and how they learned they were destroyed in the alleged flood. Additionally, without knowing the particulars of this case and if the 7-Eleven was represented, it is possible that they could have achieved a similar reduction in fine without the time and expense of litigation with immigration counsel experienced and well-versed in these matters.
Contact the Law Offices of Michael Kohler, PLLC for any questions relating to the Form I-9, ICE Worksite Enforcement investigations or other employment eligibility verification issues.