By Bruce Buchanan, Siskind Susser

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In U.S. v. Speedy Gonzalez Construction, Inc., 11 OCAHO no. 1243 (2015), the Office of the Chief Administrative Hearing Officer (OCAHO) determined ICE’s proposed fines for the company should be reduced by about 50 percent. Previously, in 2014, OCAHO decided Speedy Gonzalez committed 179 violations – over half of which were for the failure of the company to prepare I-9 forms until after the Notice of Inspection and backdating to the date of hire.

Earlier in the case, Speedy Gonzalez argued that it “recreated” some of the I-9 forms after the NOI when the original I-9 forms were missing. However, OCAHO held the company failed to present “a scintilla of evidence that the original forms ever actually existed.”

Penalties Sought
ICE sought $186,859.75 for the 179 violations previously found in the earlier decision. ICE based its penalties on a violation rate of 73.4 percent, which creates a baseline fine of $935 per violation. ICE also sought to aggravate many of the violations by 5 percent per factor for the seriousness of the violations, lack of good faith, and employment of unauthorized workers. Thus, ICE sought between $935 and $1,075.25 per violation.

OCAHO’s Holding
The ALJ for OCAHO declined to find a lack of good faith based upon backdated I-9 forms as OCAHO case law requires information on the “surrounding facts and circumstances” when an I-9 form is backdated. Additionally, the ALJ found ICE failed to identify many of the workers who were unauthorized; thus, she declined to aggravate the penalties for this reason, too.
The ALJ concluded the proposed penalties were too high for a small business, especially in light of the general public policy of leniency reflected in the Small Business Regulatory Enforcement Act of 1996. The penalties were reduced to amounts closer to the mid-range of possible penalties, between $450 and $600 per violation. Thus, the penalties equaled $97,000. Finally, the ALJ found the parties were free to “establish a payment schedule in order to minimize the impact of the penalty on the operations of the company."

Takeaway
This is another case where through litigation the employer was able to reduce the penalties by about 50 percent, which was a great savings for the company but still left the company owing almost $100,000. Many of the violations could have been cured through a self-audit directed by an immigration compliance attorney.

The full decision is here (PDF warning).