Commentary Workplace Enforcement Raids—Is Your Business Next

Work-site raids by Immigration and Customs Enforcement—the “police arm” of the Department of Homeland Security charged with enforcing immigration laws—have been steadily increasing nationwide. During fiscal year 2006, ICE reports, it “arrested 718 individuals on criminal charges in work-site investigations and apprehended another 3,667 illegal workers on immigration violations, more than a threefold increase over 2005.” Dubbed “workforce enforcement” initiatives by ICE, raids can be extremely costly for businesses. Employers must learn what the immigration laws expect of them, so as to avoid being the next target.

Raids rule in 2007
    There has been a seemingly endless stream of reported raids in 2007. On April 4, special agents from ICE swooped in on an Illinois cleaning service within the Cargill Meat Solutions Plant and arrested 13 managers and employees. On March 29, the agency conducted “consent searches” of nine businesses in the Baltimore area. As a result, assets were seized and workers detained. And on March 9, ICE arrested the president, human resources manager and other managers of an Arizona drywall and stucco company for allegedly hiring illegal workers, among other charges. The list of raids goes on.

    ICE’s aggressive workplace enforcement activities come as no surprise. DHS has made numerous public announcements that ICE would crack down on employers who knowingly hire illegal workers. Julie L. Myers, assistant secretary for ICE, recently stated, “Work-site enforcement actions target a key component of the illicit support structure that enables illegal immigration to flourish. No employer, regardless of industry or location, is immune from complying with the nation’s laws. ICE and our law enforcement partners will continue to bring all of our authorities to bear in this fight.”

    As part of this broad-reaching initiative, ICE has increased the penalties for those employers found liable, including seizure of assets, criminal sanctions against human resources managers and executives and harsh monetary fines. Long gone are the days when hiring illegal workers meant little more than relatively low administrative fines. In addition to the stiffer penalties, employers raided by ICE face legal costs, potential loss of workforce, interruption of business and negative publicity.

    Case in point: In fiscal year 2005, a single ICE work-site enforcement investigation resulted in a settlement and forfeiture of $15 million, “an amount that represented the largest work-site enforcement penalty in U.S. history and surpassed the sum of all administrative fines from the previous eight years,” according to the agency.

Casting a wider net
    A wake-up call to some is that ICE is not just targeting illegal immigrants themselves, or employers who purposely engage in unscrupulous hiring practices to benefit their bottom line, such as “churning” illegal workers or aiding in document fraud. Rather, the agency will scrutinize any business where workers may be employed or contracted without authorization from the U.S. Citizenship & Immigration Service.

    With an estimated 12 million undocumented persons in this country and the inexact science of employment verification, any type of business—particularly those employing low- to mid-skilled workers—may be investigated. Certain industries, such as manufacturing, hospitality, agriculture and construction, are thus more susceptible to raids. But the message from ICE is clear: No employer is immune. Indeed, even those who unintentionally hire illegal workers may be investigated and raided.

Documentation challenges
   Complicating this situation is confusion surrounding which documents are proper for I-9 employment verification purposes. The current form itself is outdated—listing some documents that are no longer valid for employment verification purposes according to revised regulations. For example, certificates of U.S. citizenship or naturalization are no longer acceptable documents under “List A” of the I-9 form. On the other hand, the Immigration and National Act and amendments prohibit “document abuse”—meaning employers cannot ask for more documents from a new hire than those listed on Form I-9.

    Zealous attempts to verify an employee’s work authorization documents can be perceived as unfairly targeting foreign nationals because of their race or nationality and lead to potential discrimination claims under the INA and Title VII. An example of this Catch-22 situation facing human resource professionals is Zamora v. Elite Logistics Inc. In the case, the trial court ruled that the employer’s actions—firing Ramon Zamora after his Social Security number discrepancy was cleared up and proof of naturalization allegedly provided—weren’t discriminatory. On appeal, the 10th Circuit Court of Appeal held that the manager appeared to have discriminatory motive for continuing to press the worker, who was a U.S. citizen, to confirm his Social Security. The 10th Circuit ultimately reversed, holding no evidence of discrimination and remarking: “As recent events around the country illustrate … [employment verification] is not an obligation that employers can afford to take lightly.”

    To make matters worse, the proliferation of fake documents makes it difficult for employers to detect unauthorized workers. The automated employment verification system, known as Basic Pilot, may not help in countering document fraud.

Steps in the right direction
   While there are no guarantees that your business will not be the target of an ICE investigation, there are some steps an employer can take to minimize the probability and the potential impact of a raid:

    • Ensure that I-9 forms are properly completed for each employee.

    • Confirm that the forms are kept in a safe and secure place.

    • Perform a self-audit of I-9 forms on file. Complete or make revisions as required, but do not pre-date any revision/addition. In other words, the date should reflect the time of the revision, not the date the I-9 form “should” have been completed—that is, within the first three days of hire.

    • If copies of employment eligibility documents are kept, ensure that copies are uniformly retained for all employees irrespective of immigration status.

    • Document all reasonable and lawful efforts to resolve any employment verification issues, such as a new hire’s failure to produce documents within the first three days of work, receipt of Social Security mismatch letters or reports of unauthorized workers. Follow up within a reasonable period of time.

    • Ensure that independent contractors adhere to employment verification procedures as part of the contracting agreement.

    If, despite best efforts, your business is raided or otherwise investigated by ICE, contact your immigration attorney immediately and seek representation from a criminal defense attorney.

    There is an entire body of law with respect to arrests, warrants, subpoenas and interrogation that is beyond the scope of this article. In a nutshell, while DHS has certain administrative protocols with respect to its enforcement techniques, its officers may nevertheless be subject to certain regulations and laws in the criminal law context. For example, ICE has statutory authority to “interrogate any alien or person believed to be an alien as to his right to be or remain in the United States.” No warrant is required.

    However, you and your employees have rights—no person should be physically detained simply for questioning. Moreover, a person has a right to be silent so as to not self-incriminate. Depending on counsel’s advice and the situation at hand, management may want to be cautious in speaking to ICE agents until an attorney is present.

    The landscape is definitely ripe for more raids. But getting your employee house in order now can minimize an assault on your business and reputation—and curb your potential liability in the long run.