Thread: HR personnel need to do immigration vigilance/assessment

Immigration Vigilance

With dramatic workplace raids by Immigration and Customs Enforcement repeatedly making headlines in 2008, HR leaders should make sure their organizations have comprehensive risk-assessment programs in place. Such programs should also anticipate the onslaught of negative media coverage and include plans to respond to the humanitarian aspects of a raid.

By Brock P. McCormack

Dramatic images of workplace raids by Immigration and Customs Enforcement repeatedly made headlines in 2008, seeding panic among companies in every corner of the country and in a wide range of industries.

While most of the raids that received national news coverage involved large-scale manufacturing or food-processing facilities, many other types of employers have been raided recently, including restaurants, airports, construction sites, courthouses and even the city hall of Mesa, Ariz.

With no discernable pattern of which employers might be targeted, many companies have been furiously auditing employee records and drafting emergency raid-response protocols.

For employers wondering whether this heavy-handed enforcement technique will continue into this year, public statements by ICE officials and the agency's 2009 budget projections suggest that surprise raids will not only continue, but may increase in number and severity.

Though President-elect Barack Obama has criticized immigration raids as "ineffective," and terrorizing to communities, he has also said that "workplace enforcement of our laws is, however, important." Moreover, he said, "Employers should not get away with willfully hiring people unauthorized to work here."

Exactly what form enforcement measures will take in an Obama administration remains to be seen.

Although workplace immigration raids have been occurring for several years, last year saw a marked increase in the number of raids, the sophistication of the planning and execution, and the severity of consequences for any legal violations discovered.

In FY2008 alone, it is estimated that federal immigration agents raided more than 1,000 workplaces nationwide.

These raids resulted in the arrest of more than 6,000 people, most of whom were employees working in the United States without authorization -- an arrest rate that represented an astonishing 30 percent increase over the prior year.

While 5,173 of the arrested individuals were processed for the "administrative" penalty of deportation, 1,100 were charged with criminal offenses, such as identity theft and Social Security fraud for using stolen or fake documents.

Perhaps most jarring to employers, ICE also brought criminal charges against 135 "business owners, managers, supervisors, or human resources employees" for crimes such as harboring illegal aliens, complicity with identity fraud, and falsifying I-9 forms.

In one of the most highly publicized cases -- a raid on a Kosher meat-packing facility operated by Agriprocessors, Inc., in Postville, Iowa, -- the result was a $10 million fine for the company, the arrest of 389 employees and criminal charges against the company's owners. Six months after the raid, the $300 million-per-year company filed for bankruptcy.

And that's not the end of the problems. Raided businesses face months or years of unflattering media coverage; fines for violations of other federal regulations, such as work safety or child labor rules; as well as the tarnishing of the company's image among customers and potential employees.

ICE has also, for the first time, disbarred seven employers this year from receiving federal contracts due to immigration violations.

Under the Radar

For companies seeking to remain under the radar of federal immigration authorities, it is difficult to know exactly how ICE chooses its targets. The agency has, on a few occasions, disclosed the way a raided employer attracted scrutiny in the first place. These have included suspicious identity documentation found on an employee during a traffic stop, a tip from a former employee and, in one case, a investigation into unrelated allegations by a local television station.

According to current government projections, worksite enforcement measures will increase in 2009.

For example, ICE has steadily been increasing the number of "Fugitive Operations Teams," which now stand at 100 nationwide. These teams are charged with locating and arresting individuals present in the country despite outstanding deportation orders.

In FY2008, Fugitive Operations Teams were responsible for the arrest of approximately 34,000 individuals, double the total from two years prior. In many cases, arrested aliens are interrogated regarding their employment in the United States, leading to subsequent investigations into the alien's current or former employers.

ICE has also dramatically increased the training of local police officers who are authorized to enforce federal immigration laws.

Coupled with a new initiative to give local police departments access to federal immigration databases, increased enforcement at the local level will remain a top priority this year, according to federal budget projections.

Employers that are casual about compliance with employment-verification regulations now risk being discovered by local police as well as federal officials. For example, on Oct. 29, 2008, several South Dakota dairy farms were raided following an investigation that began after an employee presented suspicious identity documents to the Highway Patrol during a routine traffic stop. The raid on the farm resulted in 27 arrests, 13 of whom face criminal charges for possessing false identity documents.

In light of the increased focus on worksite enforcement, it is imperative that employers put measures into place to ensure compliance with work-authorization laws.

As a first step, employers should conduct a comprehensive risk assessment. This commonly includes surveying recent raids in the employer's area or industry, judging the likelihood that unauthorized workers could be on the payroll and examining the soundness of company policies and procedures regarding compliance with work-authorization regulations.

An employer's first line of defense is, of course, the I-9 form, required by federal law to verify the employee has valid authorization to work in the United States and to be completed before work starts. While the I-9 form appears simple, the verification process is governed by complex and counterintuitive rules governing such issues as timing of the form's completion, who qualifies as a new employee, what documents are acceptable and when documents must be re-verified.

Comprehensive training and consultation with immigration counsel, as needed, can prevent serious future penalties for non-compliance.

Risk Assessments

Employers are strongly advised to conduct periodic audits of I-9 forms to ensure consistency of compliance companywide, and to verify that employees' work-authorization documents have not expired.

Moreover, regular audits help identify the need for further training and guard against the common situation where one representative's mistaken understanding of the I-9 form instructions taints hundreds of employees' forms.

Technology is a great asset in this regard, as cost-effective software programs are available that double-check each I-9 form as it is completed, alerting the company if the form is incomplete or if improper documentation has been presented by the potential employee. These programs also replace the need for paper I-9 forms entirely (which is permitted under federal law) and track the need for re-verification of I-9 documents.

In addition to I-9 forms, the federal government runs a free Web-based program, known as "E-Verify," that allows employers to check a potential employee's work authorization online. Several states have made use of E-Verify mandatory for employers, while some states require its use only among businesses which hold state contracts.

As of May 21, 2009 -- the third date set for implementation so far -- certain federal contractors will also be required to use E-Verify for new hires and for current employees performing work on a federal contract. This rule is currently under a cloud of legal uncertainty, however, after a lawsuit was filed on Dec. 23, 2008 by business groups including the U.S. Chamber of Commerce, HR Policy Association and the Society for Human Resource Management.

The suit alleges that the Executive Order violates federal law by mandating use of E-Verify, and that the order circumvented the proper channels for implementing such a measure. As part of the ongoing proceedings, the parties agreed on Jan. 27 to the May 21 date for implementation. The federal government also filed a motion asking for a 90-day delay in proceedings to allow the new administration "to review the [regulations] at issue in this case."

In the context of workplace enforcement, use of E-Verify does not insulate a company from being raided. In fact, one of the largest raids in U.S. history targeted Mississippi-based Howard Industries, which had been using E-Verify for some time.

Proper use of E-Verify may, however, insulate an employer from liability if an employee is later found to be unauthorized.

One significant shortcoming of E-Verify is that it does not detect identity theft, so a potential employee who has presented documents with another person's information may nevertheless be cleared through E-Verify. It is, therefore, essential that E-Verify enrollment be coupled with other comprehensive procedures and policies to confirm an individual's legitimate authorization to work.

Many of the raids in 2008 were triggered by police investigations into identity theft, so mere use of E-Verify would not have protected these companies from government scrutiny.

Raid Response

In addition to enacting preventive measures to avoid hiring unauthorized workers, employers should also draft and disseminate to appropriate company managers a "Raid Response Plan." The plan should include emergency-contact information for legal counsel, including both immigration counsel for detained employees and criminal counsel for executives or managers under investigation.

Legal counsel should be contacted immediately during a raid, as ICE agents routinely sequester detained employees and have them sign away their right to a hearing before an immigration judge. Raids that target immigration violations may also uncover noncompliance with other federal laws, such as safety violations, wage-and-hour rules and child-labor regulations. Legal counsel should be on hand to assist with these ancillary investigations.

The raid-response plan must also anticipate an onslaught of negative media coverage flowing from a raid. A press-relations specialist should be brought in immediately to answer media inquiries. In addition to speaking about the company itself, the specialist can tactfully describe the company's response to the humanitarian aspect of the raid, such as detained employees being separated from their families.

Finally, preparing for a raid in advance gives HR leaders the time to anticipate issues that might not be obvious. For example, who is going to collect a detained employee's child from school? Where in the employee's home are the family's immigration-status documents kept? Are the employee's family members illegally present in the country, and if so, do they know not to risk arrest by coming to the site of the raid? How can we prepare for a raid without appearing to have a guilty conscience?

In crafting a raid-response plan, employers should also be cognizant that federal law prohibits discriminating on the basis of national origin or ethnic identity, and so any gathering of information about employees should be done in consultation with legal counsel.

Brock P. McCormack is an attorney in the Global Immigration Practice Group of Fisher & Phillips, LLP. He can be reached at bmccormack@laborlawyers.com.


February 1, 2009

Copyright 2009© LRP Publications

http://www.hreonline.com/HRE/story.jsp? ... =166916258

Why should any business crawl under the bed from fear if they are following the laws of the state and the US? Don't expect this person to commiserate with the flaunting by any employer of the laws of this country. And the argument "we didn't know" doesn't wash with the IRS, so why should any claim of not knowing carry any water with any other agency?

For employers wondering whether this heavy-handed enforcement technique will continue into this year, public statements by ICE officials and the agency's 2009 budget projections suggest that surprise raids will not only continue, but may increase in number and severity.

Woooo hooooo! Best news today!!