In August, Immigration and Customs Enforcement made headlines when it apprehended 680 illegal immigrants who were working in poultry processing plants in the state of Mississippi.
What didn’t make headlines was that the raids were only the latest such efforts aimed at employers as well as individuals. Between May and July, ICE agents apprehended an additional 900 people.
ICE Acting Director Matt Albence said, “When we perform these worksite surges and all of our worksite investigations, our primary goal is to pursue criminal prosecution against those businesses who, frankly, their business model is based upon illegal employment.”
He also stressed that among additional federal criminal charges employers can expect to face are tax fraud, money laundering and tax evasion.
In July alone, 3,000 Form I-9 notices of investigation (NOI) were sent to employers by ICE. Before that, there also was a surge in No Match Letters sent to employers during the spring, as well as other large-scale raids that took place in other parts of the United States earlier this year.
At least another 3,000 NOI are expected to be on the way because ICE had requested and received an additional $6.5 million to hire new 27 Junior Compliance Officers (JCOs). At the time of the hiring surge, ICE assured that a major part of its mission is to “remove the magnet of illegal employment by targeting egregious employer violations and abuses in both critical infrastructure protection (CIP) business sectors and non-CIP business sectors.”
Some of the new JCOs will staff four new Department of Homeland Security Investigation offices located in Charlotte/Charleston, Kansas City, Las Vegas and the Nashville/ Louisville areas.
Amy L. Peck, an attorney with the law firm of Jackson Lewis, explains that, “In reality, I-9 audits are an inexpensive way for the government to shift the burden of interior enforcement onto businesses, who bear the cost of replacing valuable workers and, sometimes, paying large fines for mistakes on the Forms I-9.”
A company receiving an NOI has three days to produce the I-9s for active and terminated employees within the retention time frame specified. Although extensions of three days are allowed under the regulations, in reality they are rarely granted, Peck notes.
Large civil penalties also can be assessed against employers for mistakes that are found on the I-9s, ranging from $220 to $2,292 per violation. Employers with unauthorized employees who are discovered during the course of these investigations will be given 10 days to terminate these workers’ employment.
In 2018, there were 5,981 audits – a major increase from the 1,360 that were conducted in 2017. This year, notices for 3,282 audits were sent in one three- week period. Several of the targeted industries include hospitality, agriculture, food processing, landscaping and construction.
But don’t forget that these are not the only industry sectors targeted for enforcement. Earlier this year, ICE recently arrested more than 200 workers during a raid at a technology company in Texas.
In addition, employers need to be aware that since 2017, ICE has been imposing some of the largest employer penalties in its history. One company was hit with a $95 million penalty in 2017.
Employers face other costs as well. After an audit occurs, a company can lose employees overnight – and not necessarily to ICE. When they hear that an ICE audit is coming, employees concerned about their documentation may simply no longer show up for work, Peck points out.
“Of course, E-Verify is not perfect,” she admits. “Employees can be using others’ identities – including those of dead citizens and even of their own U.S. citizen children. The government does not expect employers to be forensic experts on document fraud.”
Employers should expect that ICE will continue to increase its worksite enforcement efforts, and if you haven’t taken adequate measures before, you should start doing so immediately, warns attorney Todd P. Photopulos of the law firm of Butler Snow.
“This is a call to action for employers to make a risk assessment of their exposure to both civil fines and potential criminal liability for immigration compliance violations,” he says. “Now is the time for employers to establish a well thought out compliance program that shows they take their compliance obligations seriously.”
<h3>Create a Robust Program</h3>
Photopulos says a robust compliance program will include external I-9 audits by an independent party, annual training for employees and management, and regular re-verification of employees’ status to make sure their authorizations have not expired.
Even with all of the E-Verify system’s flaws, he says it also is important to enroll in it and use it in conjunction with this compliance program, particularly if you are operating in states where E- Verify has become mandatory for many employers.
“Cutting corners on immigration compliance can threaten a company’s existence and can put managers and executives responsible for hiring undocumented workers in personal, legal jeopardy,” Photopulos emphasizes.
He recommends that employers also make sure that their formal, written compliance program contains:
✓ A clearly defined hierarchy of supervision, responsibility and accountability for making compliance-related decisions.
✓ Detailed descriptions of the roles of the various individuals involved in compliance decisions.
✓ Procedures designed to verify employees’ documentation.
✓ Established time frames for completion of specific actions, such as when the Form I-9 must be completed and by whom.
✓ Direction as to when managerial involvement is required and about when inside/outside counsel is appropriate.
✓ Summaries of state and federal immigration laws, including document retention requirements, maintenance of lawful immigration status provisions, and summary of penalties.
✓ Clear hiring and firing policies and procedures, that demonstrate compliance with citizenship/national origin anti-discrimination statutes.
✓ A plan of action for handling and responding to government enforcement activities, such as ICE audits and raids.
“Turning a blind eye in the current climate to immigration compliance requirements creates a significant, yet unnecessary risk,” according to Photopulos. “Through proper planning employers can eliminate the worry about the consequences of a government audit.”
<h2>NLRB Adopts ‘Common Sense’</h2>
The National Labor Relations Board recently embraced common sense in a public memo, according to Jerry L. Stovall, Jr., an attorney with the law firm of Breazeale Sachse & Wilson.
The memo declares that nine standard employer policies which in the past were “presumed to be unlawful” are now to be presumed lawful.
Under the Obama-era board, the position was that these policies were assumed to impose an unlawful “chilling effect” on employees’ exercise of their rights to engage in “protected concerted activity” under federal labor law, Stovall says.
The nine employer policies now allowed are:
No. 1: Civility rules.
No. 2: No photography or audio or recording on company premises.
No. 3: Bans on insubordination, non-cooperation and adversely affecting operations.
No. 4: Bans on disruptive behavior such as horseplay, fighting, roughhousing, yelling, profanity, hostile or angry tones, throwing things, slamming doors, waving arms or fists, verbal abuse, destruction of property, threats or outright violence.
No. 5: Protecting confidential and proprietary employer and customer information.
No. 6: No defamation or misrepresentation.
No. 7: No unauthorized use of company logo or intellectual property.
No. 8: Requiring authorization before an employee may speak for the employer.
No. 9: No disloyalty, nepotism or self-enrichment.
Still presumed to be unlawful are employer bans on discussing or disclosing information about wages, benefits or other conditions of employment; and no joining outside organizations or “voting on matters concerning” the employer.