We’re From The Government And We’re Here To Help: The Lurking Danger Behind Noncompliance With Federal Regulations

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Today’s workplace faces strict regulatory oversight calling for heightened awareness by those employers and managers who implement policy. With political and public sentiment at an all-time high regarding how immigrant workers factor into America’s workforce, it is imperative that employers be knowledgeable about volatile issues.

It is no longer acceptable to claim, "I was unaware." Employers are now required to be proficient in the regulatory laws that govern labor and employment, and are expected to enact policies complying with those laws. In 2010, Immigration and Customs Enforcement (ICE) reached its highest immigration enforcement numbers on record. Since January 2009, ICE has audited more than 32,000 employers. Fines of $50 million have been imposed, and 225 companies and individuals have been disbarred from federal contracting.

Quick Starting Point: 10 Basic Strategies for Immigration Compliance

1. Enroll in E-Verify. E-Verify is a free, Web-based program allowing employers to perform verification checks for new employees. It’s a great way to establish good faith and show the company as a civic-minded employer. It can also limit civil and criminal penalties (https://e-verify.uscis.gov/enroll/).

2. Establish an internal I-9 training program. HR staff should review the M-274 handbook (available at www.uscis.gov) and be familiar with the I-9 process. ICE agents scrutinize I-9s, and if they notice non-compliance or a pattern of identity fraud, they will expand their search to other facilities or company-wide.

3. Avoid harboring scenarios. Employers should ensure they are not offering housing or transportation to individuals they know are undocumented. Offending employers offer ICE an opportunity to fine them much more severely than for hiring situations.

4. Establish a no-match letter protocol. The Department of Homeland Security continues to use the receipt of no-match letters as proof of constructive knowledge that employers knowingly hired unauthorized workers. Pay close attention to no-match letters where Social Security numbers belong to infants, retirees or dead people.

5. Avoid violating anti-discrimination practices. Employers must strike a balance between being proactive and not violating anti-discrimination provisions. Employers cannot terminate or refuse to employ individuals based on their national origin or citizenship status.

6. Establish a culture of immigration compliance. Companies need to establish and enforce an immigration compliance policy that addresses issues such as what the company will do when an innocent bystander complains of identity theft and how it will respond when it receives reports that someone is undocumented.

7. Use red ink for updated I-9s. All I-9s should be reviewed for completeness and corrected as required. New I-9s produced to correct previous errors should be attached to the original. An authorized company representative should write "Updated" at the top in red ink.

8. Don’t contract-out your immigration responsibility. Contracts executed with outside contractors should include language stating that the company expects its contractors to follow immigration laws and demand audit rights to ensure contractors are complying with immigration laws. Include an immigration audit clause for any subcontractors when the employer has a federal or state contract.

9. Arrange an I-9 audit. ICE is focusing on I-9 audits and assessing fines for errors. Employers should hire an external auditing firm to ensure compliance. An external audit is the key to determining any potential liability in case an employer is targeted by ICE or other governmental agency.

10. Visit ICE’s website. It includes news releases on enforcement actions, information on tactics used in civil and criminal cases and a list of Best Hiring Practices. Consult legal counsel to determine which practices to incorporate into your immigration policy. (http://www.ice.gov)

About the author:
Jacob M. Monty is the founding and managing partner of Monty & Ramirez LLP, an employment and labor law firm in Houston, Texas. His distinguished career involves expertise in the representation of employers in litigation matters, all aspects of immigration compliance and labor and union issues with Hispanic workforces. He represents employers in federal and state courts in civil cases and in investigations and audits conducted by the National Labor Relations Board (NLRB), Department of Labor (DOL), Department of Homeland Security-Citizenship and Immigration Service (DHS-CIS), Occupational Safety and Health Administration (OSHA) and Equal Employment Opportunity Commission (EEOC). Mr. Monty also offers a selection of manager training courses and is a speaker at HR Southwest.