Recruiting in the World of ICE

By Fay Hansen

Sep. 4, 2008

R ecruiters, hiring managers and corporate executives who still believe they operate in the relatively benign environment of the business place must have missed reports on the latest wave of workplace raids and arrests carried out by U.S. Immigration and Customs Enforcement.

The raids are no longer isolated events in marginal sectors. Instead, enforcement actions by ICE are growing more draconian by the day and now engulf whole industries.

Workers are being pulled off factory floors and put into detention centers. Employees are turning evidence against supervisors and executives, some of whom are going to jail. Sourcing is fraught with new liabilities. Even employee referral programs, once the bright light for effective recruiting, are sullied by new concerns about the risk of prosecution.

Arresting lower-level employees and flipping them to produce evidence against recruiters, managers and executives is now a standard ICE practice, according to one expert.

“No one has a greater exposure to criminal prosecution than recruiters when employees have been sweatboxed by the government,” says Robert Loughran, managing shareholder and immigration law specialist at Tindall & Foster in Houston and Austin, Texas. “The government is making the case that recruiters are conspirators in hiring unauthorized workers.”

Corporate recruiting policies and practices developed as part of a sound business model are increasingly distorted by the fear of failing to comply with immigration regulations that change daily. With immigration law splintered into a thousand federal, state and local regulations and enforcement sweeps stirring up anti-immigrant sentiment, recruiters and human resources professionals are caught in a level of ugliness rarely seen in workplace relations.

The new criminalization
   The latest ICE raid in a spate of major summer sweeps occurred August 25 in Laurel, Mississippi. Special agents executed criminal and civil search warrants at Howard Industries Inc., an electric transformer manufacturing facility, and arrested 595 workers suspected of being illegal.

One employee arrested in the Howard Industries sweep said fellow workers applauded as the alleged illegal immigrants were taken into custody, according to an Associated Press report, which also noted that a tip from an employee prompted the ICE investigation.

From October 2007 to July 2008, ICE made 937 criminal arrests in workplace investigations, including 99 arrests of owners, hiring managers, supervisors and human resources employees who now face charges ranging from harboring to knowingly hiring undocumented workers.

ICE also made more than 3,500 administrative arrests for immigration violations. When the federal fiscal year ends in October, ICE will likely top the new record for arrests set in fiscal year 2007, which represented a 45-fold increase in work-site arrests compared with 2001.

“We now see disgruntled employees or disgruntled contract workers from staffing agencies or competitor companies going to the ICE to bring to its attention any sign of unauthorized workers at a company,” Loughran says. “The government opens a file and the investigation begins.”

Created in March 2003 in the wake of September 11 fears, ICE is the largest investigative branch of the Department of Homeland Security. The agency combines the law enforcement arms of the former Immigration and Naturalization Service and the former U.S. Customs Service.

“When the Department of Homeland Security was reorganized and the ICE was formed, the legacy staff for the ICE was customs agency staff,” Loughran notes.

ICE has a different personality and experience level because of it. It takes the customs enforcement experience of its staff and applies it to immigration, he says.

“Customs agents are trained for drug interdiction and money-laundering arrests,” Loughran says. “They shake the small guy, provide incentives and, in the case of illegal aliens, threaten immediate detention or deportation. In the case of U.S. citizens who may be implicated, they offer a plea-bargain deal. People roll over.”

According to Loughran, ICE can bring 20 different criminal and civil charges to bear in immigration cases.

“It is critical for recruiters and human resources executives to understand that we are no longer dealing with the fine points of law but with a bucket approach,” he says. “Now the core objective of U.S. attorneys is to throw the entire U.S. Criminal Code, including racketeering and conspiracy charges, at recruiters, managers and corporate executives.”

ICE is looking for the biggest media bang possible, Loughran says.

“When a tip comes in from a confidential informant—for example, a disgruntled employee or a competitor—the ICE investigates and schedules a raid. The ICE press releases for the raids are prewritten. Another press release goes out a few months after the raid when the company executives are indicted, and then another when sentences and fines are handed down.”

Distorted policies
   Employee referral programs are the next target, Loughran warns.

“ICE enforcement agents see these programs as a for-profit conspiracy to defraud the federal government and violate immigration laws, with employees and recruiters acting as knowing conspirators,” Loughran says. “The government is now looking for targets of opportunity—cases with the largest numbers of workers, vulnerable executives and large potential fines—so it may take another six to 12 months before the ICE hits referral programs.”

As ICE agents turn their attention to referral programs, a chilling effect likely will set in and employers will have to turn to alternative methods for sourcing. The ICE scrutiny has already affected relations with recruiting and staffing agencies.

“Outside vendors now form the area where the risk is highest,” Loughran notes.

Loughran points to the emergence of “the Wal-Mart standard” as an example of the impact of ICE raids on vendor relations. In 2005, Wal-Mart paid $11 million and revised its vendor policies to settle a claim that it was responsible for immigration law violations stemming from its contract with a cleaning vendor that used unauthorized workers.

Wal-Mart could have defeated the federal government’s allegations because the vendor was clearly at arm’s length. But the Bentonville, Arkansas-based retailer decided to settle—probably for public relations reasons, Loughran says. Now every vendor that works for Wal-Mart must stipulate it has completed a workforce audit and is in compliance.

“The Wal-Mart settlement is the new business-place precedent because the largest employer in the United States was intimidated into a settlement,” he says. “The biggest guy in the room got punched in the nose. Wal-Mart’s response to the ICE charges is the new de facto business standard. The federal government will point to any company that does not meet the standard as ‘indifferent’ or ‘negligent’ on the issue of employing unauthorized workers.”

The scramble to revise policies and maintain compliance is vastly complicated by the layers of federal, state and local laws now in play.

“It’s a mess because rules are constantly changing and there’s no precedent,” says Jorge Lopez, shareholder, corporate migration law group, at Littler Mendelson in Miami. “Companies and their counsel have nothing to turn to.

“Companies are trying to come up with policies that make sense. They are questioning everything they’ve done and that’s created a chilling effect on efforts to set policy. The whole essence of the business model is at stake. Companies need to recruit candidates, and employees need to be able to refer potential candidates without the risk of liability.”

Lopez notes that the effect on vendor relationships is particularly severe in the lower-wage industries.

“In the past, companies were willing to rely on provisions in the contract with the vendors,” he says. “Now, it’s been pushed forward to requiring declarations and even audit statements. There is more pushback from client companies. There’s been a trickle-down effect, and that’s exactly what ICE wants.”

The only solution for HR executives is to be vigilant, especially if the company operates in different geographies.

“Policies must be monitored on a jurisdiction-by-jurisdiction basis,” Lopez advises. “The job of the HR executive has completely changed. Now CEOs are reading about the raids and criminal prosecutions and putting pressure on their general counsel and HR executives.”

Certain businesses, especially smaller companies, may have higher risk tolerance.

“For larger companies, the real threat is in field operations where a specific individual may be operating outside company policy,” Lopez says. “HR executives must constantly conduct field checks.”

Discrimination charges
   There is a growing concern that companies may become so compliance-oriented with respect to immigration law that they risk discriminatory conduct, according to Lopez. To prevent this, HR executives must ensure that they are not being overly aggressive in their immigration compliance activities.

“Sometimes the choice has to be made between immigration compliance and potentially discriminatory conduct,” Lopez says. “Companies should err on the side of lower liability, which now means risking a discrimination charge to ensure immigration compliance. But this must be a fact-based decision grounded in the specific workforce and the business line.”

If companies have to choose which gray area they will occupy, they will go with discrimination, Lopez says.

“Five years ago, they would have risked noncompliance on immigration issues to avoid any risk of discrimination charges,” he says. “Now, the opposite is true.”

Lopez notes that there has been a drop in the availability of immigrant labor in the past year, and this drop has occurred in the context of an overall long-term labor shortage.

“Employers simply cannot find suitable candidates for their open positions,” he says. “You cannot run a business if you don’t have the resources. This was the origin of Bangalore. Employers have to have a pool of workers or send the work offshore. It’s a myth that immigration provides cheap labor. If employers could hire sufficient workers without using immigrants, they would.”

The potential for discrimination charges and the climate of fear fostered by ICE raids and new rounds of local legislation have created unprecedented burdens for recruiters and HR staff.

“HR executives have a responsibility to maintain a non-hostile workplace,” Loughran says. “It is part of the obligation to be vigilant about harassment based on race, ethnicity or national origin. The failure to do so is actionable. Nondiscrimination laws have not changed, and there are federal agencies looking for cases to prosecute.”

Loughran notes the media has fueled tension surrounding immigration.

“There are hysterical media reports about immigration and job loss even in areas where unemployment is extremely low,” he says. “And there are historical precedents for what happens when one group is vilified as taking away American jobs.”

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