Guests: Why an Oklahoma bricklayer is fighting for your right to a real court and jury
Tulsa business owner Danny Barbee had decades of bricklaying experience when he launched ProCraft Masonry in 2010. What he lacked was a law degree to navigate regulatory red tape.
A single federal document, Form I-9, comes with over 150 pages of instructions and guidelines. Hiring managers must check IDs, verify work authorization, gather signatures, meet deadlines and keep all paperwork current. This is just the beginning of federal requirements. More hurdles come from state, county and municipal agencies.
Big corporations have human resource and compliance officers to keep everything straight, but Barbee runs a small operation. It is just him and his wife managing employees. Given the circumstances, ProCraft did well when U.S. Department of Homeland Security agents showed up for a surprise inspection in March 2020.
The unannounced visitors claimed to find merely 14 paperwork violations. Several employees, for example, had signed their forms after the three-day window from their hire date. The agency didn’t charge ProCraft with hiring unauthorized staff — the harm the regulation targets. So, they could have cut Barbee some slack.
Congress anticipated technical errors when it created Form I-9. Business owners acting in good faith can have up to 10 business days to correct honest mistakes. Homeland Security opted for punishment instead. More than two years after the initial inspection, the government sent a violation notice to ProCraft and demanded $31,325.70 in fines.
Barbee and his wife were stunned. To make matters worse, the government is blocking their path to a jury trial. If they insist on pleading their case in federal court, they first must endure years of litigation in administrative “courts.” Homeland Security creates the barrier by funneling cases to U.S. Department of Justice hearing officers, who act as prosecutor, judge and jury.
In other words, the same agencies that stand to benefit financially also control the system. The results are predictable. Since 2022, every case involving allegations of Form I-9 errors has gone in the government’s favor, producing over $2.4 million in fines.
The home-team officiating leaves Barbee vulnerable.
“I worked hard to build my business, and now I could lose it without ever getting a chance to have a judge and jury hear the case,” he says. “If I got a speeding ticket, I would get a court date. But with my livelihood on the line, it could be years before we even get a final decision from bureaucrats.”
Rather than accept the rigged system, ProCraft is fighting back with a constitutional lawsuit. Our public interest law firm, the Institute for Justice, represents the company for free.
The central argument of the case is simple: The Constitution demands separation of powers, and Article III gives the courts full control over “all” cases. The Seventh Amendment also guarantees the right to a jury trial. Executive Branch officers can conduct investigations and make allegations, but they cannot make final determinations.
Even when agencies stay in their proper lanes, they should not use delay as a weapon to gain leverage over small businesses. Most cannot afford prolonged legal battles. Regulators count on this, which is why they shock people with ruinous fines and drag out the administrative process while keeping the courthouse doors locked.
Examples of this type of abuse are far too common.
Brothers Joe and Russell Marino, owners of a family farm in New Jersey, experienced the pain when the U.S. Department of Labor accused them of paperwork errors and demanded $550,000 in 2016. Chuck Saine, owner of a landscaping company in Maryland, faced a similar ordeal when the U.S. Department of Labor accused him of paperwork errors and took $55,000 in 2022.
In both cases, the small-business owners battled for years without seeing a judge or jury. Now Barbee is trapped in a similar scheme.
Help could come from the U.S. Supreme Court, which is set to hear oral arguments in Securities and Exchange Commission v. Jarkesy, a case dealing with the use of in-house agency judges. Barbee hopes to give lower courts a chance to build on the potential Supreme Court precedent.
Running a small business is hard enough already. People like Barbee do not need additional hassle.
Bob Belden is an attorney and Daryl James is a writer at the Institute for Justice in Arlington, Virginia.
This article originally appeared on Oklahoman: Oklahoma small business owner seeks change through U.S. Supreme Court
