And I’m not talking Minnesota ice! 2019 was unquestionably a busy year for the Department of Homeland Security Immigration and Customs Enforcement (“ICE”). No doubt you heard on the news about one of Homeland Security Investigations’ workplace warrants over the past year. Less newsworthy, the I-9 audits spiked as well, with no signs of slowing down. For example, in FY2017, there were 1,360 I-9 audits, in FY2018, there were 5,981 – a 340% increase. What does this have to do with wage and hour laws? Admittedly, it is a stretch, however, I write this article for our firm’s Employer Advisor, so I figured I might as well reprint it here as well. It’s like a Wednesday bonus blog!
It is easy think that of all the employers in the United States “only” 5,981 I-9 audits took place – thus, your overall chance of being audited are low, right? Perhaps, but like anything else, if you are audited (and we have had several employers in the past year that were), there is about a 75% chance that you do in fact have Form I-9 violations, all of which are avoidable. In fact, when we assist employers with internal audits, we spot audit about every 10th Form I-9. Of those, we find a technical violation on almost every form, which the employer can proactively correct. As detailed below, the potential penalties, for what seems like a simple form, can be staggering. The largest fine that has been levied against an employer to date is $95 million.
If your business is audited, here is what you are looking at for possible penalties:
- Monetary civil fines
- Knowingly hire and continue to employ violations of $573-$4,586 per violation for first time violators (up to $22,972 for repeat offenders).
- Substantive and uncorrected technical violations, or failure to produce an I-9, ranges from $230-$2,292 per violation. For example, if you have 100 I-9s and 75 of those are in error, you are looking at fines from $17,250-$171,900.
- Fines may be enhanced up to 25% based on business size, good faith, seriousness, unauthorized aliens and history. This puts the above example at $21,562-$214,875.
- Monitoring, suspension or debarment from government contracts.
- Criminal arrest of employers.
- Administrative arrest of unauthorized workers.
How to Best Avoid Potential Penalties
A few steps now can save a lot of headache (and fines) later:
- Conduct an internal audit now – work with an attorney to do so, as you can actually create technical violations by improperly correcting I-9s or revivifying employees.
- Ensure proper document retention for each terminated employee.
- Be able to produce all I-9 records within 3 days (i.e. system of binders/files in one spot).
- Make sure the most recent form is used (it is still the one with a 2017 expiration date).
- Use E-Verify.
- If you do get a Notice of Inspection (“NOI”), other audit documentation, or a raid, contact an attorney right away.
- Make sure your business has a designated person for any ICE audit or raid and they know what attorney to call immediately.
- Properly correct Form I-9s before you need to turn over documents to ICE.
- Train managers (anyone who is going to fill it out on behalf of the employer and sign) on the proper completion of the I-9.