Jan 7th 2010
By Richard D. Alaniz
The images tend to be memorable and camera-friendly – federal agents stage a well-publicized bust on a manufacturing or meat-packing plant and cart off hundreds of undocumented workers. It happened in May 2008, when the U.S. Department of Justice and U.S. Customs and Immigration Enforcement (ICE) arrested 389 people at a meat-packing plant in Iowa. Within three days, 297 of those pleaded guilty to federal felony charges and were sentenced to prison. Nearly all of them admitted to using false identification or someone else’s social security number to obtain employment.
But that was then, under a different presidential administration. Nowadays, ICE, which is part of the U.S. Department of Homeland Security, has shifted its focus away from undocumented workers and is targeting the employers who hire them. Rather than obtaining search warrants and kicking down doors, agents tend to call ahead before showing up to inspect paperwork. However, with this change in focus, owners, executives, and managers must take extra precautions to ensure that they do not end up paying hefty fines or even going to jail.
As one example, ICE recently announced that the owner and two former managers of a Mississippi restaurant were sentenced to prison for violating federal criminal immigration laws. They were found guilty of hiring and continuing to employ and harbor illegal aliens. According to ICE, prison sentences for the three ranged from eight months to a year, and fines and forfeitures totaled more than $600,000.
The shift in enforcement started in earnest last April, when the Department of Homeland Security issued updated worksite enforcement guidances, emphasizing that ICE would specifically focus on dangerous criminal aliens and employers who knowingly hire illegal workers. That month, speaking before the House Appropriations Committee Subcommittee on Homeland Security, Marcy M. Forman, ICE’s director of office of investigations, testified that the agency increased fines for organizations caught hiring illegal workers. “We expect that the increased use of the administrative fines process will result in meaningful penalties for those who engage in the employment of unauthorized workers,” said Forman.
From April through November, ICE significantly increased its activities against employers:
- 45 businesses and 47 individuals have been debarred, compared with no businesses and one individual debarred during same period in fiscal 2008;
- ICE issued 142 Notices of Intent to Fine (NIF) totaling $15.9 million, compared with 32 NIFs totaling $2.4 million in all of fiscal 2008;
- 45 Final Orders totaling $798,179, compared with eight Final Orders totaling $196,523 during the same period in fiscal 2008;
- 1,897 cases initiated, compared with 605 cases initiated during the same period in fiscal 2008; and
- 1,069 Form I-9 inspections, compared with 503 inspections initiated in all of fiscal 2008.
“ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces,” said ICE Assistant Secretary John Morton in November . “We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules.” Every employer should be prepared for the time when the feds may come knocking on the door.
What to Do Now
More than ever, it is important for companies to ensure that all of the i’s are dotted and t’s are crossed when it comes to employee paperwork. By law, all employers are required “to verify the identity and employment eligibility of all individuals hired in the United States,” according to ICE. This is done through the Employment Eligibility Verification Form I-9, and ICE has identified form I-9 audits as its most important administrative tool in building criminal cases and bringing employers into compliance with the law.
On the five-page form, employers must examine employment eligibility and identity documents that an employee presents in order to determine whether they “reasonably appear to be genuine,” then record the document information on the Form I-9. The form requires employers to testify under the threat of perjury that to the best of their knowledge, the employees are authorized to work in the United States.
Employers must retain I-9s for three years after the date of hire or for one year after termination, whichever date is later. Employers need to be sure all I-9 forms are properly maintained, logically organized, and easily accessible since ICE and other federal agencies can demand to see the forms and other related documents.
If they haven’t already, employers need to develop training programs for hiring managers, human resources personnel, and anyone else in the company who is responsible for completing I-9 forms. After training, those responsible for completing the forms should know how to properly fill them out, understand which documents are considered acceptable and be comfortable determining whether documents reasonably appear to be genuine. Whenever possible, employers should limit the number of staff authorized to complete I-9 forms to ensure consistency and reduce the need for training.
Organizations should also periodically conduct internal audits in order to find any weaknesses in the system before the federal government does. By randomly pulling I-9s and reviewing them for accuracy, employers can determine whether the forms are being properly completed and filed.
When the Feds Show Up
When it comes to ensuring the legal status of all employees, the best strategy right now may be to hope for the best, but prepare for the worst. Along with reviewing training and spot-checking I-9 forms, employers need to develop an action plan about what to do when someone from ICE visits.
First, designate someone to serve as the point person for any interactions with ICE agents. This person should receive specific training on how to respond appropriately to any questions or requests for information. This person should also understand the importance of immediately contacting the company’s in-house counsel or outside attorneys as soon as anyone from ICE makes contact with the organization. Everyone in the company should have the name and cell phone number of the company representative, so that person can be reached immediately, any time of the day or night.
ICE officials do not need a search warrant or subpoena to review I-9 forms and related documents. However, the agency must give a three-day notice in order to look over the records. If ICE officials show up without notice and request to review records, employers can, and generally should, request the time to make the paperwork available.
Front-office staff and those who may have initial contact with agents should not allow enforcement agents to investigate the site until the point person or company attorneys have arrived, unless the agents have a warrant. No matter how upsetting the circumstances, employees should be coached about the importance of maintaining a professional and calm attitude when interacting with government agents.
ICE inspectors generally ask the same kinds of questions when they arrive at an employer’s site or headquarters for an I-9 audit, so prepare employees for what they might expect. Agents are usually looking to see if the information on I-9s is accurate and matches government records. They will often ask to speak directly with foreign workers and company officials. It is extremely important that everyone who speaks with government representatives does not feel pressured to provide answers they are not 100 percent sure of – if an employee accidentally misspeaks, the company may open itself to a more vigorous investigation.
Working with legal counsel, try to narrow the amount of information that agents are seeking. Ask if records can be delivered, rather than turned over on the spot. As much as possible, make and retain copies of all the documents that are handed over, and be sure to keep a record of everything the government receives.
It is a different matter from a routine audit when ICE comes with a search warrant and the intention of seizing records and interrogating employees. If the company representative is not on-site, another employee should stay with the investigators throughout the search until the representative and legal counsel arrive.
Employers do not have to answer questions during a criminal investigation and, while they cannot interfere with the investigation, they do not have to compel employees to speak with agency officials. Other than requesting a copy of the search warrant, the best thing to do is to immediately contact legal counsel to get professional advice on what steps to take next.
ICE has made its priorities clear – with this type of forewarning, employers would be wise to take the opportunity now to ensure they are in compliance with all hiring regulations. Consulting with legal counsel, auditing paperwork, and providing training will help ensure that a routine audit won’t turn up any unpleasant surprises that can lead to bad publicity, fines, or even jail time.
About the author:
Richard D. Alaniz is senior partner at Alaniz and Schraeder, a national labor and employment firm based in Houston. He has been at the forefront of labor and employment law for over thirty years, including stints with the U.S. Department of Labor and the National Labor Relations Board. Alaniz is a prolific writer on labor and employment law and conducts frequent seminars to client companies and trade associations across the country. Questions about this article can be addressed to Alaniz at (281) 833-2200 or [email protected]