ICE Vows to Increase Worksite Enforcement Investigations
WARNING TO EMPLOYERS: MORE RAIDS AND FINES COMING
The constant ebb and flow of workplace enforcement by the federal government seems to be moving into the flow stage. Employers need to be prepared.
While you may be aware of the U.S. Immigration and Customs Enforcement's (ICE) recent directive for increased worksite enforcement investigations, you may not know this directive has been taken seriously. ICE's Homeland Security Investigations (HSI) doubled the amount of ongoing worksite cases in eight months' time compared to the last fiscal year. Between October 1, 2017, and May 4, 2018, HIS opened 3,510 worksite investigations; initiated 2,282 I-9 audits; and made 594 criminal and 610 administrative worksite-related arrests. These are significant increases from the previous fiscal year and are a testament to ICE's mission of ensuring U.S. businesses maintain a culture of compliance with employment laws.
As a practical matter, ICE sends out a notice of inspection to alert business owners it will be auditing their hiring records to determine compliance with existing laws. Employers receiving this notice are required to produce the company's I-9's within three business days. If a business is not in compliance, civil fines and possible criminal prosecution could follow. All workers identified during these investigations who are unauthorized to remain in the U.S. are subject to administrative arrest and removal from the country.
Employers who decide they are not likely to be subject to these types of inspections can be stuck with a hefty fine or criminal action. In the last fiscal year, businesses who failed to comply with the law were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines.
WHAT YOU SHOULD BE DOING
Do not be the business that everyone knows because you paid the largest financial penalty in an immigration case or had one or more of your management team arrested. Implementing good practices now will serve your business well going forward and will avoid unnecessary work and financial strain if and when ICE sends you a notice of inspection. Here's what you should be doing to prepare:
Independent audits of your Form I-9s. Most employers make Form I-9 mistakes. These mistakes, even if innocent, can result in $100,000+ fines. Audit your I-9s every other year, or annually if you have high turnover.
ICE Raid Response Plan. What would you do if ICE showed up and started interviewing, arresting and detaining your employees? Are you or your on-site managers prepared for the media? How would you address staffing needs? You will have no time to discuss these issues if ICE shows up tomorrow. You should have a plan in place.
Proactively addressing your concerns about employing illegal workers. What is knowledge that someone is here illegally? Could you go to jail for employing someone who you believe, but are not absolutely certain is here illegally? (yes, you could) What are the legal issues with asking someone about their work authority? There are myriad legal issues employers have when trying to tackle the issue of workers who are here illegally.
Thompson Coe can support you with all of these preparatory needs so you are ready when ICE shows up. Contact us at (651) 389-5000 or visit myHRgenius@thompsoncoe.com at any time to discuss.
Thompson Coe’s Tips of the Week are not intended as a solicitation, do not constitute legal advice and do not establish an attorney-client relationship.