Tweet
In United States v. R&SL Inc. d/b/a Total Employment and Management (TEAM), 13 OCAHO no. 1333a (Nov. 25, 2020), Office of Chief Administrative Hearing Officer (OCAHO) faced a Complaint asserting over 2,000 substantive violations in the completion of its employees’ I-9 forms.
After Immigration and Customs Enforcement (ICE) served a Notice of Inspection (NOI) on TEAM, a Notice of Intent to Fine (NIF) and Complaint was filed against the company. Thereafter, TEAM filed a Motion to Dismiss and ICE responded with an Amended Complaint. On November 7, 2019, OCAHO denied TEAM’s motion and found over 2,000 alleged violations with an accompanying chart listing the employee’s name, approximate date of hire, date of termination, I-9 retention date, employment authorization status, and a “Notes” section with the alleged facts related to each alleged violation was sufficient to satisfy the requirements of a substantive violation. See 28 C.F.R. § 68.7(b)(3). Furthermore, in the initial decision, OCAHO stated ICE is not required to attach the Forms I-9 in question because the Complaint provides “a clear, concise statement of facts” for each alleged violation. See prior post - https://discuss.ilw.com/blogs/bbucha...s-i-9-in-issue.
In this most recent decision, OCAHO went through numerous allegations in the Complaint. Count I of the Amended Complaint alleged TEAM knowingly hired/continued to employ one unauthorized worker. The key issue in determining whether there was a violation is the issuance of a Tentative Non-Confirmation (TNC) and TEAM’s failure to provide that employee notice and the ability to contest the TNC. Specifically, OCAHO found:
[Since] Respondent (TEAM) did not inform the employee of the TNC, the employee did not get the opportunity to choose whether to contest the TNC. The MOU [Memorandum of Understanding] indicates that if the employee does not contest the TNC, E-Verify will issue a Final Nonconfirmation. An employer may terminate an employee if there is a Final Nonconfirmation…. Respondent appeared to be in a difficult position as it did not follow the rules initially, but the employee’s E-Verify status remained a TNC and Respondent could not terminate him both pursuant to the program, and because he had already departed.
[B]ased on the totality of the circumstances, narrowly construing constructive knowledge, and considering all of the E-Verify instructions stating that an employer cannot terminate an employee until there is a Final Nonconfirmation, the Court finds ICE did not establish that Respondent had constructive knowledge that the employee in Count I was unauthorized to work in the United States.
In Count II of the Amended Complaint, it alleged TEAM failed to prepare and/or present I-9 forms for 515 employees. The dispute in this count is whether TEAM provided these I-9 forms. TEAM’s payroll manager asserted she provided the I-9 forms to ICE while ICE’s forensic auditor stated they were not provided. The receipt provided by ICE is of no assistance as it merely states “3 large boxes of original Forms I-9.” (Often, ICE fails to record the number of Form I-9s presented which can be used to the employer’s advantage if there is a NIF and a dispute over the number of Form I-9s presented.) OCAHO found there was a “genuine issue of material fact” concerning whether TEAM provided these I-9 forms and denied the Motion for Summary Decision on this point.[B]ased on the totality of the circumstances, narrowly construing constructive knowledge, and considering all of the E-Verify instructions stating that an employer cannot terminate an employee until there is a Final Nonconfirmation, the Court finds ICE did not establish that Respondent had constructive knowledge that the employee in Count I was unauthorized to work in the United States.
Count III alleged TEAM failed to timely prepare and/or present 215 Forms I-9. The issue in this count revolved around what were the employees’ actual first day of employment. TEAM asserted as a staffing company there are two dates involved – (1) the date when an employee accepts an offer to be staffed and is entered into the assignment pool; and (2) the date an employee is actually assigned to a job. E-Verify FAQs provide guidance to this issue for staffing companies and state “When completing Section 2 of Form I-9, staffing agencies may choose to use either the date a new employee is assigned to their first job or the date a new employee accepts an offer and is entered into the assignment pool as their day of employment.” OCAHO found “the evidence shows that for the 213 I-9s at issue, using the later date, the employees began working and receiving wages prior to completing section 2 of the I-9”; thus, TEAM failed to timely prepare I-9s for 213 employees listed in Count III.
In Count IV, the Amended Complaint listed numerous instances where TEAM failed to ensure that the employees properly completed section 1 and/or TEAM failed to properly complete sections 2 or 3 of the I-9s for 1,224 employees. The allegations are a garden variety of violations - the employee checked more than one box or the wrong box in section 1; TEAM backdated a number of Form I-9s; 24 Forms I-9 contain a signature stamp, rather than a signature; and several I-9s lacked the printed name of the employee who signed section 2, and that signature did not appear on other I-9s (See U.S. v. Agri-Systems, 12 OCAHO no. 1301, 13 (2017), when the employer representative fails to print their name in section 2, the signature does not appear on other I-9s, and there is no indication who the signatory in section 2 is, the violation can be classified as substantive.).
OCAHO failed to find some of the allegations in Count IV to be substantive violations. I will discuss a few of the interesting ones. ICE alleged eight Forms I-9 contained a substantive violation because the employer did not include the state or county that issued the List C document, rather, it listed “Department of Health” or “DOH” as the issuing authority. OCAHO stated:
[ICE] has not pointed to any authority that failure to include the state or county in the issuing authority for a List B or C document is a substantive violation…. While the I-9 instructions provide that if the List B or C document is issued by a state entity, the employer should include the state that issued the document, Complainant has not pointed to any authority showing that a failure to include the state or county that issued the document is a substantive violation, rather than a technical or procedural violation…. As such, Respondent (TEAM) is not liable for the violations related to eight I-9s related to the absence of a portion of the issuing authority on List B or C documents.
ICE asserted two I-9 forms contain substantive violations because the employee’s signature and the employer’s signature are not dated. OCAHO cited the Virtue Memorandum, which classifies the failure to ensure that the employee dates section 1 and the failure of the employer to date section 2 as technical violations. An employer may not be held liable for a technical violation without notice and an opportunity to correct it. U.S. v. Forsch Polymer Corp., 10 OCAHO no. 1156, 3 (2012). Thus, ICE failed to establish a substantive violation related to these two I-9 forms.
Finally, ICE alleged several employees did not sign and/or failed to print the employee’s name in section 1 of their I-9 forms. However, the evidence showed the I-9 forms were signed and name printed but “just in the wrong spot.” Thus, ICE did not prove these I-9 forms contained a substantive violation.
OCAHO did not issue any penalties in this decision because it has not decided the number of substantive violations. OCAHO must still determine whether 215 Form I-9s were received by ICE. When a final decision is rendered, I will write another blog post.
If you want to know more information on I-9 compliance and related issues, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
