Steering Away the Trojan Horse: Lessons from Worksite Enforcement Actions

by Snell & Wilmer

The estimated number of illegal immigrants in the United States exceeded 11 million as of 2011, and many reports state that number has grown since then. Tying numbers to economic conditions, more recent studies report that during the so-called “Great Recession,” the growth rate of illegal immigrants in this country actually dropped; however, some studies are now reporting that the trend is pointing back in the direction of growth. Meanwhile, the federal government continues to debate competing “comprehensive immigration reform” plans while engendering little confidence in the public that they will in fact achieve a sensible solution, let alone the stated objective. In response to that infighting, more than half of the 50 states have opted for self-help by passing immigration-related laws that deny social benefits to illegal immigrants, heighten employment verification requirements and/or require employers to use E-Verify.

United States Immigration and Customs Enforcement (ICE), however, continues to enforce immigration laws notwithstanding the distracting, if not chaotic, immigration debate that dominates headlines. During the past five years, ICE has shifted the focus of worksite enforcement away from targeting unauthorized employees to scrutinizing employers’ hiring and employment practices. While the current status of immigration law leaves much to be desired, current enforcement actions unequivocally demonstrate that employers who hire and/or continue to employ unauthorized workers will incur civil and/or criminal penalties. The potential exposure from worksite enforcement actions—civil and/or criminal—is no longer theoretical or academic. The consequences are real and exemplified in cases cropping up throughout the country.

Although ICE will continue its enforcement activity against employers for the foreseeable future, their activity to date imparts valuable lessons that employers should heed. Below is a summary of the five most important lessons that are applicable to business owners, managers and general counsels.

  1. Know Your Rights and Responsibilities: Worksite enforcement is an area of law becoming increasingly more complex because of rapidly changing laws, competing political objectives and the involvement of multiple agencies. These complexities are easily overlooked when considering that most worksite enforcement matters start with the Form I-9, Employment Eligibility Verification (Form I-9), which is deceptively simple in appearance and therefore dismissed by the employer. Failure to understand an employer’s rights and responsibilities at any point during the completion, maintenance or production of the Form I-9, or when responding or communicating to ICE regarding an inspection of Forms I-9, can have disastrous affects for the employer if mishandled or (as often is the case) ignored. Indeed, demonstrated consequences include civil and criminal penalties, severe interruptions in operations, damage to good will and additional legal exposure under other laws the uninformed employer or representative did not even consider.
  2. The Notice of Inspection is the Beginning of an Adversarial Process: According to ICE’s field guide, “worksite enforcement cases ... are defined as investigations of business entities suspected of violating the Immigration and Nationality Act (INA).” The guide goes on to say that the “issuance of the Notice of Inspection (NOI) on any employer is the first step in the process that may lead to the issuance of a Notice of Intent to Fine ..., a Warning Notice, or a finding that the employer is in compliance with respect to the employment eligibility verification requirements of 8 U.S.C. § 1324a(b).” Stated differently, the NOI is no different than a discovery request from ICE used to determine whether the employer has complied with the law. If a violation is found, ICE will use the acquired evidence to impose civil penalties and/or turn over the same evidence to the Office of the U.S. Attorney for criminal prosecution. Recent cases have demonstrated that the federal government will aggressively pursue the seizure and forfeiture of assets it believes the employer acquired through the use of unauthorized labor. Employers should understand the nature and role of the NOI and treat it with the respect and urgency it requires.
  3. Have Policies and Procedures: Policies and procedures serve an important role for employers. They define, regulate and inform how the organization operates and sets the employer’s expectations of its employees. Indeed, most employers already have such policies and procedures in a handbook or manual distributed to employees. One of those policies and procedures should comprehensively address the hiring and employment eligibility verification process. It should also observe the anti-discrimination provision of the INA. Just as Title VII prompted employers to draft anti-discrimination/harassment/retaliation policies and procedures to set the right tenor and culture to mitigate liability, a properly drafted immigration policy could do the same.
  4. Inform and Train Staff Regularly: While policies and procedures are great, they mean nothing if employees do not know about them. Therefore, employers should take steps to inform all employees about the organization’s rights and responsibilities under immigration laws. Moreover, employers should provide specific training to those employees responsible for the employment verification process so that they fully understand it along with the Form I-9 and E-Verify (if used). Only these trained employees should participate in regular Form I-9 audits with the assistance and input of outside counsel. If done correctly, informing and training staff may demonstrate good faith on behalf of the employer and even mitigate legal exposure.
  5. Centralize the Hiring Process: An employer should designate only a handful of employees responsible for the employment verification process. Centralization of this process is critical for incorporating a secondary review as part of each employee’s verification. It also helps minimize the potential of any single individual subverting the employment verification process. Centralization will further provide accountability, facilitate training and enhance consistency.

All indications suggest worksite enforcement will not only continue but also become a more complicated area that threatens to impose serious sanctions on unwary employers. And, while those sanctions have serious implications, an employer can lessen the potential shock and impact of those sanctions by taking worksite enforcement matters seriously.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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