Not many employers read the “tea leaves” and foresaw what was coming when President Trump signed Executive Order 13788, entitled “Buy American and Hire American,” a broad directive which calls for the rigorous enforcement and administration of existing laws to protect the interests of US workers.
This put in motion a renewed and intensified focus on issues related to the I-9 form which is used to verify workers’ right to legally work in the United States. The Immigration and Customs Enforcement (ICE) Acting Director Thomas Homan forewarned employers about what was to come in late 2017 when he spoke about ICE’s mission and stated that worksite enforcement is an important component of ICE’s overall strategy and pledged to increase the time spent by his agency on worksite audits by “four or five times.”
Just in case you think this is political rhetoric and it will blow over consider the following:
In October 2017, Asplundh Tree Experts, Co., one of the largest privately-held companies in the United States, headquartered in Willow Grove, Pennsylvania, (“Asplundh”), pleaded guilty to unlawfully employing aliens, in connection with a scheme in which the highest levels of Asplundh management remained willfully blind while lower level managers hired and rehired employees they knew to be ineligible to work in the United States. Asplundh agreed to pay the $95 million dollar recovery fee, including $80 million dollars criminal forfeiture money judgment and $15 million dollars in civil payment. This represents the largest payment ever levied in an immigration case
In November 2017, Cloverhill, a subsidiary of Aryzta AG, Zurich, Switzerland, a maker of baked goods for fast-food chains and supermarkets said it’s struggling to run a Chicago bakery after it lost a third of its workers in a clampdown on 800 immigrants without sufficient documentation. The company reported that the Cloverhill issue has led to a 7 percent decline in their North American sales in the three months through October. This raid is one of the biggest U.S. employment headaches reported by a European company so far.
In January 2018, U.S. immigration agents descended on dozens of 7-Eleven stores and targeted about 100 stores nationwide to open employment audits and interview workers in what officials described as the largest operation against an employer under Donald Trump’s presidency.
Consider the impact that an ICE investigation could have. ICE can assess a monetary penalty for each I-9 that has one or more substantive or uncorrected technical violations using a sliding scale often known as the “matrix.” The exact fine will depend upon your overall error percentage as well as other subjective factors including the size of your business, good faith, and seriousness of the violations (to name a few). Employers with 50% or more errors will be fined at the highest amount – typically $935 per I-9. This does not include cost associated with the amount of time it takes to complete an I-9 audit and conduct overall program management.
In his article, ‘ICE Announces Up to Five-Fold Increase in Form i-9 worksite Inspections,’ John Fay, Immigration attorney, shared some proven strategies that employers can initiate right away to address the risks of an ICE worksite audit.1
(1) Compliance Awareness
Your first strategy is to emphasize the importance of the I-9 form and the process to your hiring managers and top management. Employers are charged with the responsibility to make sure they hire a legal workforce by completing the I-9 form in a timely and correct fashion.
(2) Conduct a Self-Audit
You should strongly consider working with experienced immigration counsel who can guide you in developing a remediation plan and ensures you follow all of the various rules for correcting past compliance mistakes.
(3) Create an I-9 Policy Document
Your policy should document how I-9s forms will be completed and reviewed for accuracy. Having standard operating procedures not only shows good faith, it also serves as a training document.
A good I-9 policy document will include the following essential details:
How (and when) will section 1 be completed by the new hire?
Who is responsible for verifying identity and employment eligibility documents and completing section 2?
Do we make/retain copies of supporting documents for all new hires, or only as required by E-Verify?
What is the I-9 process for rehires (complete section 3 when allowable or always prepare a new I-9?)
How do we handle remote hires?
How do we document name changes?
Who is responsible for managing reverifications (when required)?
Also the policy should include information on the following:
Employers should document the specific steps that will be taken when a Notice of Inspection is received including required notifications that may be required.
In addition, HR staff should also be aware of any “post-audit” notice requirements.
To minimize the risk of an improper reverification, employers should take the following action:
Make sure you clearly define who should be subject to reverification
Implement a reminder system to alert you of upcoming expirations which are occurring 90 to 120 days in the future so that you can properly inform your employees and give them time to provide you with updated documentation
Decide who will be responsible for actually performing the reverification and reviewing the original documents
(4) Use an Electronic I-9 System to Ensure Compliance Moving Forward
Maintaining I-9 compliance across your organization can be a moving target, given frequently changing compliance rules and the practical realities of employee turnover.2 In addition, the prospect of mandatory E-Verify may soon become a reality with the Legal Workforce Act, H.R. 3711, having been reintroduced by Rep. Lamar Smith. The bill would require all employers to use e-verify within two years.
Fausta Albi, immigration attorney for Larrabee Albi and Coker, LLP.generally advises clients to train employees at the front desk or receptionist area on how to handle audit requests.” Note that audit can be a particularly stressful occasion, and staff members may understandably want to be as accommodating as possible, however, under the new California law, employers can actually be penalized for being too helpful during the audit process
One more issue to make sure you advise your clients not to do is to become overly zealous and to decide to simply recertify all their employees just to be sure everyone has a correct I-9 and is legally employed. Sounds like a reasonable strategy, but in reality, will not only go afoul of some state laws it could get you into trouble with federal law as well.
Federal law prohibits improper reverification of current employees with so-called “unfair documentary practices” under the antidiscrimination provisions of the Immigration and Nationality Act. As an example, California’s Senate Bill 1001, in essence made unfair documentary practices a “fineable” offense under state law.
The ‘hand writing is on the wall,’ now is a critical time for employers to prepare for the emerging aggressiveness of ICE to avoid the consequences of these types of investigations which can result in the loss of workers, damage to company reputation and image, affect relationships with customers and the public in general.