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What are the Form I-9 Penalty Trends from 2013 OCAHO Decisions?

The first thing that stands out about 2013 decisions from OCAHO is that there was a major uptick in the number of substantive decisions – 30, up from 11 in 2012. There were also eight decisions which involved Office of Special Counsel issues. Of the 30 substantive decisions concerning I-9 form violations, 29 of them involved the issue of the amount of penalties. One decision, Ketchikan Drywall Services, Inc., was the acceptance of the 9th Circuit Court of Appeals’ decision affirming $173,250 in penalties. One of the most interesting points in these 28 decisions (discounting the Ketchikan case for the above reason) was the reduction in penalties assessed by OCAHO as compared with penalties actually sought by ICE. In 2012, OCAHO reduced penalties sought by ICE by an average of 45%, whereas in 2013, the average reduction increased to 46.5%. The primary reasons for the reductions were the poor financial conditions of the companies (20 decisions) and the court’s belief that the ICE penalties sought were “unduly punitive” on small employers (13 decisions). This was consistent with the 2012 OCAHO decisions, in which these were the two primary factors for reducing the penalties. On a few occasions, employers were successful in prevailing on legal issues, which ultimately caused OCAHO to dismiss these allegations. Due to the fact that employers are getting so much relief from OCAHO (an average reduction in penalties of 46.5%), it is anticipated more employers will be challenging ICE’s assessed penalties.

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