Just two days ago, agents from the Immigration and Customs Enforcement (“ICE”) arm of Homeland Security conducted sweeping raids of 7-Eleven stores nationwide seeking allegedly undocumented workers. This new and aggressive form of immigration enforcement should cause many employers great concern, not only for the “Big Brother” aspect of immigration enforcement, but also because many employers, knowingly or otherwise, do employ undocumented workers. ICE has made it clear that they will seek to aggressively enforce immigration laws against employers using a three part approach: (1) compliance through I-9 inspections, including civil fines; (2) enforcement through the arrest and deportation of undocumented workers; and (3) community outreach. ICE’s stated goal in this activity is to protect jobs for American workers by eliminating unfair competitive advantages for companies that exploit illegal immigration. Against this backdrop, what can an employer do to protect itself?
Before we get into compliance measures, it is important to understand that generally, workforce enforcement investigations can be divided into two categories. The first is what we witnessed this week where agents from ICE conducted “raids” of places of employment, interviewed employees, potentially arresting those whose immigration status was suspect, and seizing property. The second type of compliance activity is less dramatic and involves the serving of a Notice of Inspection (“NOI”) along with an administrative subpoena. The NOI targets a complete review of a company’s eligibility verification forms, also known as the Form I-9.
Employers should be familiar with Form I-9, which is a two page form issued by the U.S. Citizenship and Immigration Services (“USCIS”) to document a new hire’s identity and eligibility to work in the United States. Compliance with the I-9 form is mandatory and must be completed within 3 days of a new hire coming on board. Penalties for non-compliance range from paperwork violations for errors or omissions ($216-$2,156 per form I-9) to violations for knowingly hiring or continuing to employ someone knowing that they are not authorized to work in the United States ($539 – $4,313 per individual). In extreme or repeated cases of violations, there may even be criminal charges brought.
Preparing for a Worksite Enforcement Investigation:
To sidestep potential problems in the I-9 arena, follow these simple TOP Do’s and Don’ts:
1. DO require all new hires to complete and sign Section 1 of the I-9 form on their very first day of work.
2. DON’T ask an applicant to complete the I-9 prior to making a job offer. Un-hired applicants will likely claim they were discriminated on the basis of the information sought in the I-9 form. It’s a headache you don’t need or want!
3. DO carefully review all employee documents to make certain they are on the new version of acceptable documents listed on the newest version of theI-9 form and that they are genuine.
4. DON’T ask a new hire for a specific document or for more than is required under the I-9 form. It is the employee’s responsibility to produce the correct complying forms.
5. DO set up consistent procedures for completing the I-9 form and make certain you train all managers, supervisors, or HR individuals on that procedure.
6. DON’T consider the expiration date of any information contained in complying documents when making a hiring or firing decision.
7. DO make and retain copies of all documents produced by the employee for I-9 compliance.
8. DON’T forget to set up an “early warning” system to follow up on documents that may be expiring. Having checked the document in the beginning will not be a defense if the document has lapsed and the employer does not follow up to ensure the worker is still authorized to work in the United States.
9. DO keep copies of all I-9 documents during the duration of an employee’s employment. Further, when an employee is terminated make certain you keep copies of all documents for at least 3 years.
10. DON’T file away the I-9 form in an employee’s regular personnel file. This is the first place a disgruntled employee will turn when he or she is terminated and wants to claim the decision was in any way motivated by his or her national origin. Keep the documentation in a separate file, much in the same manner you segregate the employee’s medical history/documents.
11. DO have a plan in place to respond to a visit by an ICE agent, regardless of whether it is a “raid” or a friendly visit as a result of a NOI. This means clearly marking off non-public areas in your workplace, ensuring that agents are escorted to a conference room or other similar area and have a manager or supervisor clearly oversee all that is transpiring.
The Trump administration has made immigration reform one of the centerpieces of its legislative and political agenda going forward. Employers need to be prepared.
With over 34 years’ experience in advising employers and employees on workplace issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the changes to the employment laws. Call Bill Boznos today at (630) 375-1958 or contact us at www.boznoslawoffice.com/contact-us through our website.