When a company is fined for I-9 violations, U.S. Immigration & Customs Enforcement (“ICE”) uses a system of base fines and negative/favorable factors to enhance or reduce the fine. One of the factors in the size of the business. “Small” businesses are treated more favorably in the context of setting the fine.
A recent administrative decision (Fowler Equipment Company, Inc., OCAHO 12A00023, Feb. 20, 2013) gave some inkling about what is “small”, a term that is not defined in the regulations.
According to the case, “small” does not mean “unprofitable”, “at risk of going out of business because of the fine”, “recently-formed”, or “mom & pop operation”. Although those factors can be considered in a close case, “small” basically means few employees.
Fowler was a family-owned company, but not what ICE considered “mom & pop”. It was profitable and had been in existence since 1953. OCAHO said that these factors did not overcome the fact that the company had a steady workforce of about 30 people, and thus was “small”.
Because of this and other ICE errors in calculating the fine, OCAHO reduced it by about half. A win for the little guy!