An administrative law judge recently sided with SKZ Harvesting Inc. and cut a proposed penalty against the Montana-based cherry company by more than half.
SKZ is a "small, family-owned cherry harvesting business," according to its owner, Kari Zavala. Its operations are highly seasonal, which means at certain points of the year the company engages in large hiring spurts to accommodate demands of the business. While SKZ has only two or three year-round employees, harvesting season typically demands around 50 or 60 additional employees. The bulk of this hiring occurs on a single day.
People who apply for work with the company during harvesting season are not interviewed. As long as they are able to do the job and complete the required paperwork, they are brought on board and put to work. Individuals work for a few weeks and then leave, welcome to return again in a year when harvesting season restarts.
"The company still faces tens of thousands of dollars in penalties."
SKZ charged with numerous Form I-9 violations
Small-sized companies such as SKZ sometimes do utilize the resources necessary to maintain their Form I-9s, either because of a lack of knowledge or insufficient resources. The lack of size only goes so far as an excuse, though. While judges have been known to cut fines proposed by Immigration and Customs Enforcement due to relative lack of size, penalties often remains fairly significant. For SKZ, the story was no different. Though the fine ICE levied against it was cut significantly, the company still faces tens of thousands of dollars in penalties.
The business first received a Notice of Inspection from ICE in August 2010. The company responded with a list of employees, about 116 Form I-9s and other documents. That same month, the agency followed up with a Notice of Suspect Documents. ICE also sent a list of 71 employees, including five who it claimed were unauthorized to work in the U.S., it considered suspect. In late 2013, the agency again issued a NOI and followed up with a list of 62 employees whose documents it claimed were suspect. In spring 2014, the agency issued a Notice of Intent to Fine.
There were three counts against SKZ. The first claims that five employees were not authorized to work in the U.S. The second alleges that the company failed to prepare or present Form I-9s for 55 employees and third accuses the employer of failing to ensure numerous employees properly completed Section 1, or make sure that it finished Sections 2 or 3 in a compliant manner.
ICE's proposed penalty cut by more than half
ICE sought a $74,587 fine against SKZ as a result of the three aforementioned counts against the small business. The allegations against the company have led to harsh fines against other parties in the past. However, SKZ argued that the penalty was too much. The cherry harvesting business claimed that most of the violations were the result of a "single bad choice" and that she "inadvertently destroyed" certain Form I-9s from 2010 to 2012. The company went on to argue that it didn't have actual number that several of its employees were not authorized to work in the U.S.
ALJ Ellen Thomas seemed inclined to agree. The judge noted that the "chaotic" hiring process required of the small business each harvesting season could be an explanation for how some individuals "[slipped] through the cracks." However, Thomas did agree that SKZ was responsible for 52 violations stemming from its failure to present certain Form I-9s. In addition, she noted that the company was also liable for the improper completion of some of the documents.
Ultimately Thomas cut around $45,000 from the proposed penalty against SKZ, dropping the fine to $29,600. Though much smaller than it was, the penalty is still substantial and, for some small businesses, could present significant problems. Situations such as this can be avoided by ensuring Form I-9 compliance.
The final penalty assessed against the company stemmed from the inadvertent destruction of some documents and the improper completion of others. These violations can lead to costly penalties, but luckily, can be avoided. Managers can have hiring staff review Form I-9 policies by rereading documents or joining webinars. In addition, employers can integrate electronic Form I-9 solutions into their hiring processes. Either way, finding a way to reinforce Form I-9 compliance is likely less expensive than facing fines for violations.