Using an independent contractor or subcontractor whose illegal workforce is on your premises creates an area of vulnerability where Immigration Customs and Enforcement (ICE) can apply sanctions against your company. ICE can deem these workers to be your employees under two circumstances: (1) there are indications of an employer/employee relationship, extremely broadly defined by the amount of control your managers exercise over these workers or (2) if you have actual or “constructive” knowledge that the independent contractor’s workforce is illegal.
Independent Contractor or Employee?
In assessing the risk of ICE sanctions through your independent contractor, your treatment of your independent contractor’s workforce is determinative. Broadly stated, an independent contractor can be deemed to be your employee based upon the amount of control you exercise. A true independent contractor performs work according to its own means and methods and is subject to your control only as to results. A few factors indicating a true independent contractor relationship are that it offers its services to the general public and works for several clients simultaneously, supplying its own tools or materials and independently determining the order in which it performs its work. To illustrate, let us look at two common types of independent contractors you might have on your premises and assist you and your company to be as ICE-proof as possible in both situations.
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