The Department of Justice, Office of the Chief Administrative Hearing Officer (OCAHO) has assessed an I-9 related penalty of over $228,000 to M&D Masonry, a Georgia construction contractor, based on an audit conducted in May 2010. While the fine is one of the higher amounts we’ve seen from OCAHO during the past few years, it actually represents a considerable improvement over the assessment by ICE of over $332,000. Based upon an 84% error rate on the I-9 forms, ICE assessed a baseline penalty of $935 for each violation. It enhanced the penalty by 5% each for seriousness of the violations and large size of the company but mitigated by 5% for good faith. One defense used by M&D was that ICE failed to fully identify 52 employees in Count II, some of which were only identified by three capital letters. Interestingly, OCAHO found ICE was “unduly generous” in treating good faith as a mitigating circumstance. OCAHO concluded “the principle of proportionality” should apply and lowered the penalties to $650 each for Count I violations and $750 each for Count II violations – failure to prepare I-9 forms. Overall, M&D was assessed $228,300 in penalties.
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