Bulletin: I-9 Compliance – OCAHO Cases Stress Need for Internal I-9 Audits and Remediation
Recent OCAHO Cases Stress Need for Internal I-9 Audits and Remediation
The Office of the Chief Administrative Hearing Officer (OCAHO) has had a busy 2015 as it has rolled through the backlog of appeals carried over from the high number of audits from the past several years. One thing these decisions have in common is they continue to illustrate the value of an employer having a strong process in place with regard to conducting internal I-9 audits and the accompanying remediation necessary to bring those I-9s into compliance where possible.
The following recent cases illustrate what employers need to have in place prior to an auditor arriving at the gates:
- Hartmann Studios—ICE fine assessed was $812,665.25. Appeal to OCAHO resulted in slight lowering, to $605,250. Decided on July 8, 2015. Errors included lack of proper completion of Section 2 for 797 people, among other items. Additionally, the assertion of good faith was denied, since Hartmann took no corrective action until AFTER they received a Notice of Inspection from ICE.
- Niche, Inc.—ICE fine assessed was $157,220.25. OCAHO reduced to $63,850. Decided on May 13, 2015. Errors included lack of ensuring proper completion of Sections 1 and 2, or, 3 for 165 individuals, and failure to present an I-9 for one employee.
- Speedy Gonzalez Construction—ICE fine of $186,859.75, OCAHO reduced to $97,000. Decided February 4, 2015. Errors included 101 missing I-9s, even though company claimed its HR staff was trained in completion of I-9. Company claimed to have no idea forms were missing until ICE audit. Also, 78 counts of improper completion of I-9s.
These cases each underscore the value of having set processes in place for not only the completion of Forms I-9, but periodic audits to ensure that those processes are being followed to the letter. ICE and OCAHO are unlikely to entertain any good faith argument designed to mitigate fines if the employer never engaged in any proactive exercise to review its internal processes and forms for soundness.
Although an employer may have trained staff who have been with that employer for a number of years, safeguards need to be in place. Even then, those same seasoned employees may have little to no experience actually auditing or correcting erroneous I-9s. Employers should proactively set up internal audit and remediation programs to gauge their exposure in the event of an audit and set out to remediate any internal findings in order to limit that exposure. Mistakes that are uncovered through internal processes and corrected or explained prior to an actual audit are much more likely to be viewed in a good faith light—whether or not those mistakes are correctable.
Employers should continuously hone their I-9 processes and implement an effective audit and remediation program. Equifax Workforce Solutions can help simplify your best practices approach to I-9 management through an easily-managed technology platform that helps ensure compliance across the jurisdictions in which you do business. To receive more information on how Equifax Workforce Solutions can assist your company in creating a strong culture of compliance with your I-9 processes, please contact us.