Judge Finds Staffing Company Liable for Near Maximum I-9 Fines for Wrong Verification

Employer Solutions Staffing Group II, LLC (ESSG), a Minnesota-based professional employment organization, had its appeal to overturn more than $200,000 in civil penalties for I-9 paperwork violations rejected by a federal administrative law judge (ALJ). ESSG contested liability for over 240 I-9 paperwork violations found during an I-9 audit conducted by U.S. Immigration and Customs Enforcement (ICE).

Earlier this year, Judge Ellen Thomas, an ALJ with the Office of the Chief Administrative Hearing Officer (OCAHO), a division of the Executive Office of Immigration Review within the U.S. Department of Justice, issued a decision to uphold the $227,251.71 in civil penalties assessed by ICE.

Judge Thomas ruled ESSG violated I-9 regulations by directing its representative to complete 242 employer verifications based on the inspection of photocopies of identity and other employment eligibility documents relating to employees that she had never seen, based on contract partner representations that the documents were authentic and related to the subject employees.

According to Judge Thomas, nothing in law or regulation authorizes an employer to delegate the obligation to conduct an in-person inspection of employee verification documents unless the employer intends to rely upon the third party to complete and execute the attestation in Section 2 as its agent.

ESSG provides payroll and human resource services to clients for workers recruited, screened, hired and on-boarded for ESSG by temporary staffing companies such as Flexicorps, a temporary staffing company located in Larsen, Texas.

According to LegalAlerts’ website, “Under the parties’ outsourcing contract, Flexicorps oversaw new-hire completion of Section 1 of the I-9 forms, reviewed the originals of the verification documents each new hire provided and certified to ESSG that the documents appeared to be genuine and to relate to the subject employees. Flexicorps sent the partially completed I-9 forms along with photocopies of the employees’ verification documents to ESSG.”

Section 2 of the I-9 forms was completed by ESSG’s payroll manger based on her inspection of the photocopies of the employees’ documents. Photocopies of the documents were also used to complete the E-Verify process. The on-boarding process was deemed complete when E-Verify confirmed work eligibility.

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