Attorneys Angelo A. Paparelli and Ted J. Chiappari recently published an article in the New York Law Journal entitled Goldilocks’ Lessons for Dealing with Bearish Immigration Police. The article outlines the Obama Administration’s current policies on immigration enforcement against businesses.
The article proposes actions that all businesses should take right away. I have listed a summary of each action and my comments directly below.
Assess Immigration Compliance. Businesses should conduct random, partial audits as a pilot project to scope out the parameters of a comprehensive immigration compliance plan by independent outside auditors. A full audit of a company’s I-9s should then take place by experience immigration attorneys. Businesses should use attorneys to conduct the full audit not only establish a basis for attorney-client and work product privilege in the I-9 audit itself but also because internal auditors potentially may have a reason to cover up mistakes or neglect of the company’s I-9s. An I-9 audit will not relieve a company for liability for mistakes on past I-9s. It will, however, potentially ameliorate monetary penalties and jail time imposed by the government if company actually correct I-9 errors uncovered during the audit.
Pat’s Take: I am in agreement with the authors here. Businesses must conduct random, partial audits of its I-9s. If a business has not been audited before and it has not trained it’s I-9 Administrators, it can expect an average of five (5) errors on each employee’s I-9.
Determine How Counsel Should Present the Audit Report. The employer should determine if it wants its auditors to conduct an audit that is either oral or written or either detailed or general. Evidence of a written and detailed audit can have either positive or negative implications for the employer depending on whether the employer follows the auditors suggested course of action. If corrections on the audit are not fully completed, then the government could view the company’s inaction as evidence wrongdoing. If the audit corrections are completed properly, it may be helpful in the mitigation of penalties and serve as a defense in the court of public opinion.
Pat’s Take: I believe that I-9 audit reports should always be written and detailed. As highlighted by the authors, the only problem with written and detailed audits is if the employer decides to ignore the suggested changes. Conversely, I-9 audit corrections implemented properly can potentially assist company’s argument that it was complying with immigration law in good faith.
One of the most vital portions of immigration compliance for an employer is what it does with its I-9s after the audit is complete. In order to assist with compliance with the audit, I always encourage the people in charge of implementing suggested corrections in the audit to call me with any questions. I also have company’s return its I-9s and the I-9 audit back to me after a period of time to ensure that all corrections have been made properly.
Be Prepared for Fallout and Take Necessary Corrective Actions. Employers should take preemptive and necessary corrective action after an audit in order to establish good faith compliance to government enforcers in order to potentially mitigate fines. Employers should anticipate that corrective action will lead a loss of some segment of its workforce. Employers can minimize disruptions in workforce by auditing I-9s in phases. Employers should discard all I-9s that are eligible for destruction as long as investigation or litigation-related discovery is not pending.
Pat’s Take: Employers must take necessary corrective action immediately after an I-9. Making corrections after a company’s initial I-9 audit is time consuming and difficult but it will assist to potentially reduce fines by evidencing the company’s good faith compliance with immigration law. Corrective action must be taken immediately because failure to take action after an audit could potentially work to hurt an employer. ICE could potentially use a company’s failure to act as evidence that it had constructive knowledge that a portion of its workforce did not have work authorization.
Adopt and Enforce and Immigration Compliance Policy. Immigration compliance policies are strongly recommended for all those employers who believe that a segment of its workforce may be unauthorized or for all those employers who have already been investigated by ICE. The policy should include the following: 1) a declaration that the employer is committed to complying with immigration law by ensuring that workers are authorized and that employment discrimination will not be tolerated; 2) employer setting up a hotline where employees can report suspected immigration violations; 3) include a new section of employee’s code of conduct whereby violations of immigration law are treated as a material breach of employment and sanctioned up to and including termination of employment; and 4) provide for annual training of employees who complete I-9s along with annual I-9 audits by outside I-9 auditors.
Pat’s Take: I recommend immigration compliance policies for all employers. Not just employers that believe it may be employing unauthorized workers or have been investigated by ICE. In my experience, ICE indiscriminately targets businesses for I-9 audits. It has audited businesses in targeted industries like meat processing plants and restaurants along with businesses such as Abercrombie and Fitch who are not in targeted industries. Abercrombie was punished to the fullest extent of the law even though it did not have any unauthorized workers. Employers should never feel confident that they will not be subject to ICE I-9 audit.
I am in substantial agreement with the policies listed by the authors except for the hotline. Granted establishing the hotline is part of ICE Best Practices. However, it is my belief that employers can accomplish the intent of the tip hotline as long as it has an open door policy and employees are informed that they can use the employer’s open door policy to voice concerns about possible violations of immigration law.
Our immigration compliance policies are based on ICE Best Practices. We generally counsel businesses to implement all of ICE Best Practices except for the tip hotline and the practice of informing the ICE every time that the business potentially violated immigration law. We recommend immigration compliance policies that include the following:
1) use E-Verify;
2) use the Social Security Number Verification Service (SSNVS);
3) establish a written hiring and employment verification policy;
4) establish internal compliance and training program to the hiring and employment verification process;
5) I-9s and E-Verify only conducted by trained individuals. All I-9s should undergo a secondary review;
6) annual I-9 audits;
7) assess subcontractor liability with immigration law and encourage contractors to incorporate ICE Best Practices and include verification requirements in subcontractor agreements;
8) establish protocol for responding to letters from federal and state agencies indicating a discrepancy in the agency’s information about the employee;
9) establish policies and safeguards against unlawful discrimination during the hiring process; and
10) maintain copies of documents accepted as proof of identity and/or employment authorization.
Incorporate Immigration Protections in Vendor Contracts and Manage Vendor Performance and Conduct. ICE also prosecutes companies for immigration violations of its independent contractors. Employers must ensure that all agreements it has with its independent contractors includes attestation that the independent contracts are in compliance with immigration law and that the independent contractor indemnifies the employer for any immigration violations that the independent contractor may commit.
Pat’s Take: Immigration protections in vendor contracts are a must. It may shock employers but it can be liable for immigration violations committed by its independent contractors. This is the case even though the employer is never involved with independent contractor’s hiring process. Employers must include attestations that its independent contractors are in compliance with immigration law in all agreements.
Pat Mack Corporate Immigration Attorney Recommended Training