Tuesday, March 5, 2013

Fowler Equipment Benefits From OCAHO Fine Reductions

Worksite enforcement and immigration related employment fines continue to be at the forefront of U.S. Immigration and Customs Enforcement (ICE) priorities, as Fowler Equipment Company, Inc. becomes the latest company fined based on allegations of form I-9 malpractice.  Fowler Equipment, based out of Union, New Jersey, is a laundry equipment service provider of varying facilities, such as commercial laundromats, hospitals, hotels and apartment buildings, who currently employ around thirty-two (32) individuals.  On January 20, 2012 the Department of Homeland Security (DHS) and ICE filed a complaint against the company alleging they failed to prepare and/or present I-9 forms for twenty-seven (27) employees, failed to ensure that seventy-nine (79) employees properly completed Section 1 of the I-9 and failed as a company to ensure proper completion of Section 2 and/or 3 of the form.

Fowler Equipment Co. initially received a Notice of Inspection (NOI) and Subpoena from ICE on November 19, 2009, resulting in a Notice of Intent to Fine (NIF) from an investigation into the company’s employment practices and form I-9 process.  During the investigation, ICE alleged that Fowler Equipment failed to ensure that Section 1 of the I-9 form was properly completed for eighteen (18) employees, and the company failed to properly complete Section 2 or 3 of the form for sixty (60) individuals.  The baseline penalty of $985 was determined due to 90% of the forms in question contained violations.  Furthermore, ICE enhanced the fines to $981 per violation based on Fowler Equipment having bad faith and a “lack of recognition of [its] violation of the law.”  For eighteen (18) of the seventy-eight (78) I-9s, the government imposed an additional 5% increase for the seriousness of the violations, resulting in a $1,208.50 fine per instance.  The fines were assessed based on the five factors which ICE uses when determining fines for a company, which are: business size, good faith, seriousness, unauthorized aliens, history and cumulative adjustments.

After the initial assessment, Fowler Equipment responded by saying their personnel were acting under the guidance of being in accordance with the law by inspecting and copying the employees’ documents, proceeding to attach copies of the documents to each employee’s I-9 form.  The company went on to “characterize the government’s penalty request as “extraordinary” and takes dead aim at ICE’s penalty guidelines” based on the heightened fine amount and liability placed upon the company.  OCAHO took precedence in the case to determine if the fine amounts were too high for the company stating Fowler Equipment’s workforce is stable with a modest thirty (30) employees, but isn’t a “mom and pop” company with any apparent danger of closing their operations.  After OCAHO completed their investigation, they determined the seventeen (17) violations involving failure to prepare and/or present I-9 Forms will be assessed at $700 per violation while the fifty-nine (59) failures to complete Section 2 by the company will result in a $500 fine per violation, resulting in a total of $41,400 in penalties.

To read the decision in full, visit the Justice Department website.

For more information regarding the proper procedures of presenting and completing Form I-9s, please call 1-949-640-4949 or Contact Us today to speak with one of our compliance experts. 

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