Thursday, December 20, 2012

How Mishandled I-9s Lead to Legal Action

Over the past few weeks, the Office of the Chief Administrative Hearing Office (OCAHO) has administered numerous decisions regarding penalty amount reductions for employers.  The employer we will focus on for this post is Barnett Taylor (dba Burger King) located in Phoenix, Arizona.

Background Information

The U.S. Immigration and Customs Enforcement (ICE) began its inquiry with a “Notice of Inspection and Administrative Subpoena on December 10, 2007 requesting I-9s for all its current employees and for former employees in accordance with the I-9 mandatory retention requirements.”  Over the course of the next two years, ICE issued a Notice of Suspect Documents on August 28, 2009 and continued with a Notice of Intent to Fine (NIF) on December 16, 2009.
The retention of Form I-9s proved to be a major problem for Barnett Taylor.  The case document states that William Marshall, the General Manager at the time, was “confused about the I-9 retention requirements and discarded the forms.”  The document went on to state that; “the I-9s were placed in a box in Marshall’s office for temporary storage and inadvertently disposed of as garbage by an unidentified worker who was cleaning the office.”

Potential Legal Action

The mishandling of Form I-9s by the Barnett Taylor General Manager propelled the company into an investigation led by ICE regarding the retention requirements based on the Immigration Reform and Control Act (IRCA), which could end up seeing the employer being fined $77,835.00 in penalties.

Barnett Taylor claimed in defense that the I-9s speak for themselves and that omissions in the required attestation in Section 1 can be cured by entries in Section 2.  The law is clearly defined and OCAHO rejected this defense, saying “When an employee does not check a box in section 1 and does not enter an alien number on the appropriate line, the employer has failed to ensure that the employee properly completed section 1.”

What You Can Do
Contact our experts to find out how we can help transition your paper I-9 forms into our seamless error-detecting electronic I-9 database to prevent further errors and possible legal action.

Labels: , , , , ,