After a six-year investigation, the U.S. Immigration and Customs Enforcement obtained a guilty plea on Sept. 28 from Asplundh Tree Experts, Co., along with $95 million in payment for unlawfully employing illegal immigrants.
As part of the plea agreement, Asplundh must pay a forfeiture of $80 million dollars, pay an additional $15 million to settle civil claims and abide by the terms embodied in an ICE Administrative Compliance Agreement Asplundh signed.
Prior to this, the previous record settlement was IFCO Systems North America Inc.’s payment of $20.7 million dollars, which was completed in 2006.
If nothing else, a judgment of $95 million drives home the point that Form I-9 is not really “just” another form and that the government is prepared to deploy a range of weapons to enforce employer compliance with federal immigration law.
When it comes to Asplundh, “while the facts of this case reveal the company to be an egregious violator, there are parts of this story that may ring true for many companies,” observes Mahsa Aliaskari, an attorney with the law firm of Seyfarth Shaw LLP.
“A look at the facts behind the headlines helps us understand where, when and why company general counsel and the C-suite should take a proactive approach to immigration compliance.”
Employers can expect more such efforts as President Trump’s administration continues working hard to fulfill his campaign promise about cracking down on illegal immigration.
“ICE is here for the long haul and future worksite investigations, onsite visits and Form I-9 audits can be expected,” Aliaskari stresses. “This will be especially true as we see an increase in resources allocated to meet the current administration’s priorities in this arena.”
In announcing the settlement, ICE Acting Director Thomas Homan said “The judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: ‘We will find you and hold you accountable.’ Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to remove this magnet.”
At Asplundh, for years employees were hired and re-hired even when lower level managers were aware that they were not authorized to work in the United States.
Avoiding the Same Fate
Beyond using extreme care when hiring based on personal referrals, Aliaskari urges employers to:
- Conduct guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel.
- Training and investment in the people responsible for this function is critical. Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents.
- Improve policies and procedures. All too often immigration compliance is handled ad hoc. “Leaving immigration compliance at the lowest rung of priorities increases risks and liabilities, Aliaskari says. “When the process is identifiable, then accountability can be, too.
- Policies and procedures do not mean anything without proper implementation and monitoring, she adds. Lack of compliance carries fines and penalties and even threats of prison terms. Dedicating upper management level resources to oversee immigration compliance should be a top consideration, she adds.
- Prepare for possible workplace disruptions. Trump’s stepping up enforcement actions should not be the motivating factor, Aliaskari notes. The Asplundh case began under President Obama.
“We have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties,” she says.