Media Interview Triggers I-9 Audit

On April 16, 2014, the Department of Justice, Office of the Chief Administrative Hearing Officer (OCAHO), assessed an I-9-related penalty for over $228,000 against M&D Masonry, a Georgia construction contractor. The initial assessment by Immigration and Custom Enforcement (ICE) was over $980 for each violation, totaling over $332,000.

During the audit, ICE found an 84-percent error rate in M&D’s I-9s. The Notice of Intent to Fine alleged 339 violations, ranging from failure to prepare or present an I-9 for 87 individuals to 252 violations for failure to ensure proper completion of Section 1 and Section 2. A large number of the I-9s were unsigned by the employees, and an even larger percentage of I-9s had missing information about employees’ immigration statuses. About half of the violations were in Section 2 where M&D failed to sign, failed to record issuing authorities and/or document numbers, or neglected to collect both List B and List C documents. M&D also accepted documents that are not on the List of Acceptable Documents.

M&D urged OCAHO to reduce the fine because many of the violations were not substantive, and argued that OCAHO should consider M&D’s ability to pay. OCAHO rejected these arguments, commenting that ICE was “unduly generous” when it took M&D’s good faith compliance into consideration after M&D made false attestation by pre-signing Section 2 for 100 I-9s. Ultimately, however, OCAHO applied “the principle of proportionality” and reduced the fine.

What is intriguing about this case is what triggered the audit. Here, the audit took place because ICE saw an article published in The Atlanta Journal Constitution: “Illegal Hiring for Airport Construction,” quoting one of M&D’s foremen stating that M&D had a practice of hiring undocumented workers.

Employers can take important lessons from the M&D case. One, employers must train their HR personnel in I-9 compliance and have carefully drafted I-9 policies and procedures in place. And, two, assign and train spokespersons who speak to the media.