In Indiana, the owner of a successful construction company is charged with harboring illegal aliens and faces 40 years in prison in Kentucky; four managers and executives of Fischer Homes, one of the nation's most successful home builders, are arrested for aiding, abetting and harboring illegal aliens—convictions could mean 10 years' imprisonment; in New York, seven current and former managers of IFCO Systems, the largest pallet manufacturer in the U.S., are arrested and charged with harboring illegal aliens for financial gain, and 1,187 IFCO employees are rounded up and charged with unlawful presence in the United States. Reports are widespread that more than half of IFCO's employees had invalid or mismatched social security numbers.
After years of benign neglect, do these highly publicized arrests and criminal charges signal a sea change within the Immigration and Customs Enforcement ("ICE") Division of DHS? Indeed, they appear to be a real harbinger of sustained and revitalized enforcement, because these efforts are win-win for the Bush administration: a show of force underscores that the government will no longer turn a blind eye to rampant disregard for the law prohibiting employment of unauthorized foreign nationals, while at the same time, the administration can send a strong signal to industries dependent on unskilled immigrant labor that now is the time—while the House and Senate try to hash out vastly different immigration reform bills—for business to raise its voice in Washington in support of legalization and guest workers, lest these employers, too, face a future dragnet.
Julie Myers, Assistant Secretary of DHS and head of ICE—a former federal prosecutor, is on a mission: in an opinion piece published in USA Today on April 25, 2006, she laid down her challenge to the employer community:
We are expanding our focus on traditional worksite enforcement, but in non-traditional ways….The most effective way [to enforce worksite regulations] is to bolster our criminal investigations against employers hiring illegal immigrants. For many employers, fines had become just another 'cost of doing business.' More robust criminal cases against unprincipled employers are a much more effective deterrent than fines….We believe this is the future of worksite enforcement.
Because of threats to national security, ICE will continue its investigative and audit focus on critical infrastructure employers, but the recent arrests make clear that all employers could be at risk. ICE is looking for examples, there is a prosecutorial zeal in ICE offices throughout the country, and the price of getting caught is likely to include serious criminal charges.
In this environment, these are the things that prudent employers should—and should not do:
1. Do not turn a blind eye to illegal workers.
When managers or human resources personnel learn of such reports, they must act on them. If the suspected illegals are direct employees, investigate the facts and terminate employment where the evidence warrants. If they are employed by contractors, follow up with the contractor and require the contractor to report back on action taken.
2. Take I-9 obligations seriously.
For employers who host subcontractor employees at the work-site, the emphasis on I-9 compliance should extend to the underlying contractual documents, which should require certification from the subcontractor that the subcontractor does not knowingly hire or retain workers not authorized to work in the U.S. and that it completes and maintains I-9 forms for all workers coming onto the premises.
3. Avoid over-documentation of work eligibility.
4. Consider participation in the pilot social security verification program.
5. Take social security mismatch notices seriously, but do not over-react.
First, the mismatch notice is, by definition, not evidence of immigration status, so an employer should not take disciplinary action based solely on the mismatch. There are countless innocent mistakes that can lead to a mismatch—notably transposition of numbers or name changes.
The safest course for employers is initially to follow the process the Social Security Administration has laid out in its procedures manual for its staff. The manual suggests these steps:
- Look to see if the employer has a copy of the Social Security card and examine the number.
- Ask the employee to bring his card to work for the employer to check against the reported number.
- If the mismatch is not resolved by inspection, tell the employee to contact the local Social Security to try to rectify the problem.
- Give the employee reasonable time to obtain a replacement card or have the mismatch situation corrected—at least two weeks.
- Document efforts made to correct the number.
Unfortunately, the Social Security Administration gives no advice about what to do about the employee's employment if, after this process, there is still a mismatch, and there is no prescription that can fit every employer's business needs. Current law does not require an employer to terminate an employee who cannot solve a mismatch, but "under all the circumstances," an employer's knowledge about social security mismatches may become relevant in evaluating an employer's compliance with immigration laws. It is thus prudent for an employer to question the employee about the discrepancy and to weigh the credibility of the employee's response, as the employer would do in any workplace investigation. In addition, if the employee provides the employer with a new Social Security number, the employer should review employment records—typically the I-9 form and employment applications, to determine if the employee misrepresented information at the time of hire. The results of the investigation should be documented. So long as the employer takes these steps—and does not have other information suggesting that the employee is an unauthorized worker, Social Security mismatch problems will not lead to immigration law claims. Nonetheless, many employers may choose to terminate employees who cannot provide a credible explanation for the Social Security number discrepancy under honesty or employment record misrepresentation policies. Because of the risk of employment discrimination claims in this area of the law, it is important to be sure that the policy violation, and not the Social Security mismatch itself, is the reason for termination. Before enforcing such a policy, the employer should review past practices to ensure consistent, nondiscriminatory application of its rules. The legal risks of a termination decision need to be assessed individually, especially if there is a collective bargaining agreement in place. In some states, the risk of a wrongful termination case, a union grievance or a union organizing effort may outweigh the risks of immigration violations, even under the new enforcement posture.
6. Follow legislative developments carefully.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.