Manufacturing, along with industries like food processing and construction, is being targeted by the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) as having a high likelihood of hiring illegal immigrants.
“It’s a dangerous world out there for employers,” commented Kim Thompson, Of Counsel, the Global Immigration Practice at Fisher & Phillips LLP. “As the economy limps along, companies may turn to hiring questionable workers just to keep their doors open.”
On June 9, 2008, President Bush signed an executive order requiring all federal contractors to use E-Verify to check the authorization status of their employees.
E-Verify is maintained by the DHS. Employers sign up and enter the names and the social security numbers of their new hires. The system checks to see if the employees are authorized to work or not.
However, the program is not foolproof.
“E-Verify has a 92 percent error correction rate, and can send back false negatives,” said Thompson. “If the Social Security Administration has my maiden name on file and I get married, it could send my employer a tentative nonconfirmation saying I’m not legal to work.”
Thompson notes that employees are given time to contact the necessary government agencies to remedy the situation and prove that you are, in fact, able to work.
“Although the E-Verify program has some difficulties, an electronic program for I-9’s is an excellent tool,” Thompson said. “It can help eliminate problems with paper forms and prompts you on what you can and can’t accept to verify identity.”
An electronic system can also provide samples of what identification forms such as a permanent resident card looks like, find errors in your forms, and create a central storage system for companies with several sites.
“Electronic systems will automatically send you a notice when an employee needs to reverify or when it’s time to purge the system,” Thompson added.
Not a federal contractor? You are still required to maintain I-9 forms for all of your employees after November 6, 1986 under the Immigration Reform and Control Act (IRCA).
And you never know when you may run into a problem -- The Social Security Administration or an individual victim of identity theft could call a company and alert them to a potential problem with an employee. Problems can also arise if an illegal immigrant is involved in a traffic stop. One of the questions that could pop up in the interrogation process is “Where do you work?”
Thompson suggests companies practice due diligence and maintain I-9 forms for all their employees hired after the IRCA date.
“Employers need to retain I-9 forms for all applicable employees for 3 years from the date of hire or 1 year from the date of fire, whichever is later,” Thompson said. “Companies should perform self-audits to be sure their paperwork is in order in the event of an ICE investigation.”
Even after an ICE raid, companies need to be cautious when checking employment authorization.
“ICE will sometimes monitor companies after a raid. They know companies are coming back from shutting down or limiting their operations and want to fill vacancies quickly,” Thompson noted.
If you find yourself involved in an immigration raid, Thompson says companies should know their rights and suggests the following tips:
- Warrants for a raid must be executed during daylight hours within 10 days of being issued. Be sure to check the validity of the date on the warrant and, if possible, fax a copy to your lawyer.
- Have your lawyer present if at all possible.
- Know your emergency contact information. Whether it’s a point person at the plant or your lawyer, you need to have the information easily accessible during a raid.
- While the media doesn’t have to cover the raid if you don’t want them there, you should establish a contact person who will speak to the media on behalf of the company.
- Your employees should also have a plan. Their families need to know what to do if they are arrested in a raid. Legal workers should have their documentation readily available, or use a copy on file with human resources.
- If you get an unexpected audit, you can request a maximum of three days for the person to return for the audit, giving you additional time to get everything in order.
- During a raid, follow the ICE agents around so you can note what is seized. You may also need to unlock doors or provide access whenever necessary.
In the event of a raid, employers who use E-Verify, or perform self-audits and put forth a good faith effort to comply will likely be shielded from legal repercussions.
Although it is important to prepare yourself for a raid, the best thing to do is not hire unauthorized workers in the first place, as you could face some severe consequences.
Companies who knowingly hire illegal workers faces fines up to $3200 per unauthorized employee for the first offense, $6500 for the second offense, and $16,000 for the third offense. Employers could also face prison terms for blatant offenses.
Employers may face additional charges, such as laundering money if they pay illegal workers under the table, or harboring illegal aliens if they are caught trying to help workers escape.
While it is important to know what the laws are regarding immigration and what is required of you for compliance, it is also important that you know your rights.
“If you have any questions on how to complete the I-9 forms, or if you find mistakes, you should contact your attorney,” Thompson advised. “Even if you don’t face fines for hiring illegal workers, you may still face fines for paperwork violations if your I-9 forms have errors on them.”
Fisher & Phillips LLP represents management in the areas of labor, employment, civil rights, employee benefits and immigration law. For more information, visit http://www.laborlawyers.com.