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.