DOJ to Increase Civil Monetary Penalties for Immigration-Related, False Claims Violations

Author: Marta Moakley, XpertHR Legal Editor

July 6, 2016

The US Department of Justice (DOJ) has published an interim final rule adjusting current civil monetary penalties, which takes effect on August 1, 2016. The adjustments are based on the Bureau of Labor Statistics' Consumer Price Index for October 2015 and are in accordance with the 2015 Amendments to the Inflation Adjustment Act.

A new regulatory provision, 28 CFR Section 85.5, sets forth the penalty amounts for civil penalties assessed after August 1, 2016, and whose associated violations occurred after November 2, 2015 (the effective date of the 2015 Amendments).

The increases will not apply to:

  • Violations occurring on or before November 2, 2015; or
  • Assessments made prior to August 1, 2016, whose associated violations occurred after November 2, 2015.

Some of the increases in penalties include:

  • False Claims Act penalties will range from a minimum of $10,781 to a maximum of $21,563 (the penalties as of November 2015 ranged from a minimum of $5,500 to a maximum of $11,000).
  • Under the Anti-Kickback Act, the penalty per occurrence will be raised from $11,000 to $21,563.
  • Penalties for conflict of interest criminal violations under the Ethics Reform Act of 1989 will rise from $55,000 to $94,681.
  • Unlawful employment of aliens penalties under the Immigration Reform and Control Act of 1986 (IRCA) will rise to:
    • A minimum of $539 to a maximum of $4,313 for first order violations;
    • A minimum of $4,313 to a maximum of $10,781 for second order violations; and
    • A minimum of $6,469 to a maximum of $21,563 for subsequent orders.
  • Paperwork violations (per relevant individual), which include Form I-9 paperwork violations, under the IRCA will rise to a minimum of $216 to a maximum of $2,156.
  • Violations related to a participating employer's failure to notify of final nonconfirmation of an employee's employment eligibility will rise to a minimum of $751 to a maximum of $1,502.
  • Unfair and discriminatory immigration-related employment practice violations will rise to:
    • A minimum of $445 to a maximum of $3,563 for first order violations;
    • A minimum of $3,563 to a maximum of $8,908 for second order violations; and
    • A minimum of $5,345 to a maximum of $17,816 for subsequent orders.
  • Unfair and discriminatory immigration-related document abuse penalties will rise to a minimum of $178 to a maximum of $1,782.
  • Violations of document fraud (relating to more serious fraudulent activities) under the IRCA will rise to:
    • A minimum of $445 to a maximum of $3,563 for first violations; and
    • A minimum of $3,563 to a maximum of $8,908 for subsequent violations.
  • Violations of document fraud (relating to less serious activities) under the IRCA will rise to:
    • A minimum of $376 to a maximum of $3,005 for first violations; and
    • A minimum of $3,005 to a maximum of $7,512 for subsequent violations.

The DOJ has included a request for comments in its regulation. The comment period ends on August 29, 2016. Any comments should include a reference to "Docket No. OAG 148" and may be submitted electronically to the federal government's rulemaking website.