Many businesses already facing COVID-19 coronavirus-related threats to the bottom line are now besieged on another front as Immigration and Customs Enforcement (ICE) has ramped up the I-9 workplace inspections central to President Trump’s immigration policy. Specifically, multiple sources have informed Fisher Phillips that the ICE offices in San Diego and Los Angeles have combined to issue more than 300 Notices of Inspection in the past two weeks.
Escalating Inspections and Investigations
In recent years, I-9 inspections by ICE and HIS have increased threefold – from 1,360 to 5,981 per year – while worksite investigations have increased even more dramatically-- from 1,691 to 6,848 per year. As a sanctuary state, California is already a particular target of ICE enforcement actions. Even before the outbreak, at least one large business in Southern California reported closing due to the financial stress caused by an ICE I-9 inspection. California law adds additional burdens, as employers are required to issue written notice to all employees within 72 hours of receiving a Notice of Inspection.
Although ICE has respected “enforcement-free zones” during past emergency situations such as natural disasters or terrorist attacks, it does not appear to be concerned with the negative effects on business the COVID-19 coronavirus outbreak has created in certain communities. Nor is there any indication that the President’s Proclamation declaring a state of national emergency will slow ICE’s I-9 increased inspection initiative.
Just as businesses struggle to stay afloat during the COVID-19 pandemic, the unexpected burden of an I-9 audit can be crippling. In addition to dealing with serious HR issues such as work-from-home policies, social distancing, and employee sick leave issues, employers may find themselves scrambling to respond to ICE Notices of Inspection. Gathering I-9s, reviewing and addressing errors (to the extent they may be addressed) before turning them over to ICE can prove more difficult than in normal circumstances.
For example, if an employee makes a mistake or omits certain required information in Section 1 of the I-9, they must correct it themselves. The employer cannot do it for them. If the employer has instituted a work-from-home policy, or has put employees on layoff or furlough status, getting employees to come into work to address such errors can be a logistical nightmare.
What Should Employers Do Now?
In the current environment, many companies are struggling just to complete I-9s for new hires. Fisher Phillips is working with many of its clients to address I-9 compliance where HR, the employee, or both are not present at the worksite. We encourage employers to reach out to us for a review of their current I-9s to determine possible exposure should they be hit by an I-9 inspection, and to address and correct errors in their current I-9s to the extent possible.