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FMG Law Blog Line

I-9 Audits: ICE Targets Restaurants; Administrative Judges Respond by Slashing Fines

Posted on: May 29th, 2013

By: Kelly Moul

The hospitality industry is no stranger to unwanted “special attention” from administrative agencies, including the Department of Labor (DOL) and Immigration and Customs Enforcement (ICE).

In 2012, for instance, slightly more than 38% of ICE audits were directed at restaurants.

Many of these audits resulted in proposed fines from ICE, which the employer restaurants then appealed to the Office of the Chief Administrative Hearing Officer (OCAHO).

Several decisions were recently issued in these cases, significantly reducing the proposed fines.  These cases clearly illustrate that ICE’s proposed fines are usually excessive, and employers can significantly reduce their liability by appealing ICE’s findings after an audit.

Below are a few recent examples of reductions in fines, along with the reasons given by OCAHO for the reductions:

Subway #37616: Reduced from $46,282 à $9,600

  • Small employer (7 employees)
  • No unauthorized workers employed at location
  • No history of violations

Subway ##35029 & 23095: Reduced from $82,280 à $15,800

  • Small employer
  • No unauthorized workers employed at location
  • No history of violations

Black & Blue Steak & Crab: Reduced from $44,165 à $32,850

  • Small employer (despite employing 77 workers)
  • Acting in good faith
  • No unauthorized workers employed at location
  • No history of violations

El Azteca Dunkirk: Reduced from $11,000 à $2,200

  • Small employer (10 employees)

Siam Thai Sushi Restaurant: Reduced from $16,308 à $8,350

  • Small employer (10 employees)
  • No unauthorized workers employed at location
  • S-Corp had lost money in the previous year

In 2013, OCAHO is on track to review four times the amount of cases docketed for 2012.  This increased litigation is likely due to employers realizing that fighting back against ICE’s assessed fines after an audit often reduces their payout significantly.

 

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