In a recent decision, the U.S. Court of Appeals for the Ninth
Circuit found, among other things, that an employer could not make
a good faith defense to a charge of continuing to employ
unauthorized workers or failing to properly complete, retain, or
produce I-9 employment verification forms.
DLS Precision Fab LLC, a Phoenix, Arizona-based custom sheet
metal fabrication company doing business as Di-Matrix Precision
Manufacturing, had dealt with the sudden growth of its workforce
due to an expansion of a Department of Defense program by hiring a
well-credentialed human resources director to ensure compliance
with applicable state and federal employment laws. Instead of doing
so, however, the HR director shirked his responsibilities to the
point of “literally stuffing the government's
correspondence in a drawer and never responding,” according to
DLS. U.S. Immigration and Customs Enforcement subsequently
inspected DLS's I-9 forms and other relevant business
information and served DLS with notices of suspect documents and
intent to fine.
The court noted that the good faith defense, as argued by DLS,
did not apply here. DLS conceded that its violations were
substantive but contended that the “peculiar facts of this
case” justified extending the good faith defense to the
substantive violations because DLS had made a good faith effort to
comply with the law's employment requirements by hiring an HR
director, but the HR director exhibited bad faith by neglecting his
duty to keep DLS compliant. The court was not persuaded. Among
other things, the court pointed out that under the law, such a
defense might apply to technical or procedural, but not
substantive, violations. Also, the court said, “DLS is not the
first employer to hire an employee with the expectation that he or
she will comply with the law only to be disappointed, nor is it
likely to be the last. More broadly, DLS asks us to disregard the
company's responsibility for hiring and supervising its own
employees. The HR director was acting as DLS's agent, and his
failure to perform his responsibility may properly be imputed to
The full text of the opinion, DLS Precision Fab LLC v. U.S.
Immigration & Customs Enforcement, 2017 S.O.S. 14-71980 (Aug.
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