In 2012, the U.S. added about 151,000 jobs each month, which means a lot of new employees had to prove they could work legally. This can be complicated and if done wrong, employers can get in trouble. OCAHO is a group that deals with cases where employers didn’t follow the rules. If ICE thinks an employer broke the rules, they send a letter saying how much they have to pay. The employer can either pay, try to settle, or go to court. It’s good news that recent court decisions have led to smaller fines for employers. OCAHOâs litigation process begins with the government filing a complaint against a respondent. The complaint outlines the alleged violations and the remedies sought. The respondent then has 30 days to file an answer. The case is then assigned to an ALJ, who sets a hearing date and encourages both parties to file prehearing statements outlining their positions. Discovery is undertaken as needed and agreed upon by the parties. After discovery, the parties can file dispositive motions and responses. Settlement attempts may occur before the final hearing, and the case resolution timeline varies depending on the case activity. Employers who get in trouble for immigration law violations can ask for their case to be reviewed by a higher official within 10 days of the decision. The request must be in writing and give reasons for wanting a review. The official then has 30 days to make a new decision. If the employer still isn’t happy with the outcome, they can appeal to a U.S. appeals court within 45 days. When deciding on fines, the government has to prove the violations happened and can charge anywhere from $110 to $1,100 per violation. They also consider the size of the business, how sincere the employer was, how serious the violation was, whether the person was allowed to work in the U.S., and whether the business has a history of breaking the rules. ICE considers several factors when determining fines for businesses that have employed unauthorized workers. One important factor is the size of the business, including the number of employees and other financial considerations. A small business with fewer than 100 employees may get a lower fine, but other factors like revenue, assets, and past profitability also play a role. In a specific case, ICE argued that a company should face higher fines because of its revenue and length of time in business. The judge said that just because a company is making money doesn’t mean it’s big. Alyn had around 50-62 employees at the time of the problem. This didn’t make the penalties worse or better. If the employer can show they tried to follow the rules before they were caught, they might have a good excuse. But if they backdated forms or claim they didn’t know the rules, it’s not a good excuse. It’s the employer’s job to make sure their employees fill out forms correctly. In a court case, ICE wanted to give a restaurant higher fines because they didn’t fill out employee paperwork on time. But the judge said there wasn’t enough evidence of bad behavior to do that. Not filling out the paperwork, especially the section where the employee says they’re allowed to work in the U.S., is a serious violation. But some mistakes, like not checking off boxes or not writing down the right documents, might not be as serious. In the case U.S. v. Modern Disposal Inc., the court disagreed with ICE’s reasoning that the employer showed “a measure of compliance” because some I-9 forms did not have violations. The court said this was not a fair way to assess the seriousness of the violations. The court agreed with the government’s penalties and said that as long as the penalties are reasonable, they don’t need to be changed.
To determine if someone was an unauthorized worker, the government needs to show specific evidence that the person was not allowed to work in the U.S. It’s not enough to just say there were unauthorized workers in the company, they need to prove each case. Employers can face fines for not correctly checking the work eligibility of their employees. If they have unauthorized workers, the fines can be higher for those workers. Employers with no prior violations won’t necessarily get lower fines. There are other factors that can be considered, like the company’s finances and the impact of the fine on the business. The law is always changing, so employers have to stay on top of their immigration requirements. It’s important to carefully evaluate the case to get the best outcome.
Source: https://www.floridabar.org/the-florida-bar-journal/breaking-it-all-down-employers-sanctions-under-immigration-law-and-ocaho-litigation/
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