Personnel
The ICEman Cometh
With the latest Immigration and Customs Enforcement agency’s action, all businesses should review their personnel operations, develop compliance plans and have in place crisis-management procedures.
Pat Hudson
The Immigration and Customs Enforcement (ICE) agency, an arm of the Department of Homeland Security, is targeting employers in its efforts to crack down on illegal workers. Are your records and employees ready for inspection?
Shifting the Focus
Last year, the ICE shifted the focus of its enforcement strategy. ICE determined that just going after undocumented workers wasn’t enough. Instead, ICE wanted to get at the reason that undocumented workers sought out work in the US: the fact that there are employees who hire them. The idea was that arresting and removing illegal workers must be just part of a strategy to deter unlawful employees. It’s the employers themselves, though, who are the root case of illegal immigration. This is in contrast to the Bush administration, whose enforcement activity was characterized by high-profile raids in which hundreds of illegal immigrants were rounded up. A strategy many thought was not effective enough.
“This initiative is in line with the Department of Homeland Security’s vital responsibility to enforce the laws, reduce demand for illegal workers and protect opportunities for the nation’s lawful work force,” Temple Black, a New Orleans-based ICE spokesman, was quoted as saying in The New Orleans Times-Picayune.
This means that companies need to know that the ICE will not accept a claim of ignorance of the laws as justification. They expect employers to be familiar enough with common identification documents so they can recognize obvious frauds. The ICE also expects employers to know how to complete an I-9 and to know the rules for storage and retention of I-9s.
Crackdowns
In December 2010, the ICE sent Notices of Inspection to 180 businesses in Tennessee, Alabama, Arkansas, Louisiana and Mississippi. The notices told them that the ICE would be inspecting their I-9 forms and seeking to review voluminous other records, including a list of current and terminated employees, and the names, Social Security numbers, and all active employees’ dates of birth.
“They’re going to be inspecting I-9 forms and even other hiring records to make sure those employees are eligible to work, and they’re doing it in a very methodical and more pervasive way than they have done before,” said Clyde Jacob, director and head of the New Orleans office of the law firm Coats Rose Yale Ryman & Lee. “Employers are really going back and trying to make sure they have everything in order.”
Renee Baker, Louisiana state director of the National Federation of Independent Business, a small business association, expressed concern. “Small businesses … they don’t have attorneys on staff. A lot of times, they don’t even have attorneys on retainer. Knowing all the ins and outs of employment law is a lot to ask of someone who’s drying your clothes or fixing your car. It can get pretty burdensome for small businesses.”
Steps to Take
A company that has illegal workers will have to bear the consequences if things are not in order—from firing the employees who cannot prove that they are in the country legally while the company is fined accordingly to being brought up on criminal charges if the ICE determines anyone acted knowingly and with intent. In addition, fines for simple I-9 form violations range from $110 to $1,100 per violation. In 2010, ICE fined companies $7 million.
On the other hand, there are some steps that companies can take to review their paperwork and processes in order to be compliant. Begin by reviewing your I-9 practices. Design I-9 training that addresses what documents can be accepted, what to look for in fraudulent documents, how to properly complete the I-9 form and how to do all of this while still complying with EEO laws. Finally, ensure all employees who hire people take part in the training—and that they know they need to refuse documents they believe to be fraudulent.
Protect Yourself
This year, throughout the country, the ICE will continue to inspect companies to ensure they are compliant, especially with renewed pressure from House Republicans for the ICE to do more to clamp down on companies who employ illegal immigrants.
This latest ICE action in the Southeast underscores the need for all businesses to review this important aspect of their operations, develop compliance plans that will protect them from this potential liability and have in place crisis-management procedures, including access to outside counsel that specializes in this area, in the event the “ICEman” cometh!
Pat Hudson is Director of Vertical Market Sales for Waste and Recycling at Labor Ready, a multinational temporary staffing provider. Labor Ready is a participant in ICE’s IMAGE program, designed to ensure best practices when it comes to hiring guidelines and I-9s. Labor Ready and parent company, TrueBlue, were the first staffing companies to be recognized as part of this program. Pat Hudson can be reached at [email protected].