Employer’s Overzealous I-9 Documentation Demand Triggers Civil Monetary Penalty


A Florida steakhouse must pay civil monetary penalty for violating the Immigration and Nationality Act (“INA”) by requiring extra proof of eligibility of an employee to work in the United States.

A settlement agreement between OSI/Fleming’s LLC, which owns and operates the Fleming’s Prime Steakhouse & Wine Bar (“Fleming’s”) restaurant in Sandestin, Florida and the Justice Department announced December 7, 2023 resolves the department’s determination that Fleming’s violated the Immigration and Nationality Act (INA) by discriminating against a lawful permanent resident when checking whether he had ongoing permission to work.

U.S. law requires all employers to verify the eligibility of each employee to work by completing the required Form I -9, Employment Eligibility Verification (“I-9”). Completion of this duty requires the employer to confirm the worker’s identity and permission to work in the U.S. by requiring the worker to present an appropriate combination of legally acceptable documentation from the options listed on the I-9.

The I-9 rules allow workers to choose which valid, legally acceptable documentation to present to demonstrate their identity and permission to work, regardless of citizenship, immigration status or national origin. Employers cannot demand more documents than are necessary or specify documentation they prefer to see as part of this process.

After opening an investigation based on a worker’s complaint, the Department concluded that Fleming’s discriminated against a lawful permanent resident by rejecting the valid documents the worker originally provided and unnecessarily requiring him to present a document with an expiration date to prove his citizenship status. When yhe employee failed to do so, Fleming’s fired him.

After the department started its investigation, Fleming’s rehired the worker and paid him lost wages. Under the agreement, Fleming’s will pay a civil penalty of $7122.00 to the United States, train its human resources staff on the INA’s requirements and provide an alternative way of accepting a worker’s documentation if the company’s software will not accept a worker’s valid documentation.

The enforcement action cautions other employers to use care to closely follow the I-9 documentation requirements.

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Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35 plus years of health industry and other management work, public policy leadership and advocacy, coaching, teachings, and publications.

A Fellow in the American College of Employee Benefit Counsel, Co-Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee and VIce-Chair Elect of its International Employment Law Committee, Chair-Elect of the ABA TIPS Section Medicine & Law Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, and Chair of the ABA Intellectual Property Section Law Practice Management Committee, Ms. Stamer is most widely recognized for her decades of pragmatic, leading-edge work, scholarship and thought leadership on healthcare and life science, managed care and insurance and other workforce and staffing, employee benefits, safety, contracting, quality assurance, compliance and risk management, and other legal, public policy and operational concerns in the healthcare and life sciences, employee benefits, managed care and insurance, technology and other related industries. She speaks and publishes extensively on these and other related compliance issues.

Ms. Stamer’s work throughout her career has focused heavily on working with health care and managed care, life sciences, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. Scribe for the ABA JCEB Annual Meeting with the HHS Office of Civil Rights, her experience includes extensive involvement throughout her career in advising health care and life sciences and other clients about preventing, investigating and defending EEOC, DOJ, OFCCP and other Civil Rights Act, Section 1557 and other HHS, HUD, banking, and other federal and state discrimination investigations, audits, lawsuits and other enforcement actions as well as advocacy before Congress and regulators regarding federal and state equal opportunity, equity and other laws. 

For more information about Ms. Stamer or her labor and employment, employee benefit, health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here. 

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This entry was posted on Thursday, December 7th, 2023 at 10:54 PM and is filed under citizenship, Corporate Compliance, Employer, Employers, Human Resources, I-9, national origin, Nonresident aliens. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.

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