Case
Study #1 : Case
Study #2 : Employer
Alert
Employer Alert
You
Could be Criminally Liable (and not even know
it!)
Illegal immigration is the hottest topic
right now, not only in the news, but in Washington,
DC and every state house in the nation. While it
appears that nothing is going to get done anytime
soon, watch out! The politicians will try to show
they are doing something by making a show at enforcing
the laws already in place. This show of force is
something that every employer needs to be aware of
and take steps to make sure they are not at risk.
The major difference between this
round of enforcement and previous enforcement efforts
is the change of violations from civil to CRIMINAL.
Previous INS investigations were looking for technical
violations: incomplete or incorrectly filed out I-9’s, accepting the
wrong documents, not keeping I-9’s separate
in their own file, etc. These violations were generally
civil in nature and subject to monetary fines. In
the post 9-11 world, the playing field has changed.
The new enforcement agency, ICE, Immigration and
Customs Enforcement, is pursuing criminal charges
according to United States Code Section 8. The focus
of these charges falls under two words - “Reckless
Disregard.” You and your company now may be
held criminally liable for not complying with the
Immigration Laws of this country. This carries not
only larger monetary fines, but also the potential
for jail terms.
What Are
Your Risks?
There are two major areas where risks exist: your
internal practices and third party staffing suppliers.
Accelerator Consulting Group recently sat down
with a representative from ICE to find out what
this means for the manufacturing industry and what
you can do to protect your company.
Internally, you can be at risk if you
- Fill out the I-9’s without making sufficient
effort to verify the validity of the documentation.
Weak compliance efforts, such as completed I-9’s
with bad documentation, will no longer be tolerated.
- If you take no steps to address verification
or have no plan to address verification when
notified by the Social Security Administration
that numbers submitted in your quarterly reports
don’t match the people.
- If you blatantly just ignore the law because “you
have to get the job done.”
Third party staffing providers can put you at risk
as well. If you have a staffing provider that
is in violation of immigration law an investigation
will be done to determine if you had knowledge
of the violations. If knowledge existed, among
any of your management team, you could be held
just as responsible as the staffing company because
of “Reckless Disregard.”
How You
Can be Accused of “Reckless Disregard”
This may seem extreme but in reality it is very simple case to make. Here are
a few scenarios as to how this may happen:
Scenario 1: You have several temporaries on your
job that are performing well and you make an attempt
to hire them. During your process you discover that
they are illegal. What do you do? They are great
workers, and they have been here a while. Would you
let them continue to work as temps? They are not
your employees, right? Wrong, you now have knowledge
and have done nothing, hence “Reckless Disregard.”
Scenario 2: During a work break, one of your supervisors
is making conversation with a group of employees
and he or she asks a temporary why doesn’t
he apply for a full time job with your company. The
temporary responds that he doesn’t have good
papers. What do you do? If you let the person stay
as a temp and take no corrective action with the
supplier, you are at risk.
What do you do when you are taking proposals from
several staffing companies and a few of them are
$2 below the market? It sounds great and you can
save your company thousands of dollars. You think
to yourself, “They are not my employees and
the staffing company says they check I-9’s.” You
are right…. until ICE shows up and starts
talking to you and your staff and one of the above
scenarios is discovered. The practice of “don’t
ask, don’t tell” doesn’t work.
So you have to ask yourself is the risk worth the
savings.
What Can
You Do To Avoid This Risk?
- First make sure your HR department is in total
compliance with the I-9 process
- Set a policy that doesn’t allow anyone
in the company to override this process. This
particularly occurs when production schedules
are tight and “we just need people.”
- Have a policy that follows up on notification
letters and make sure that it includes all documentation
- Conduct a labor market review (preferably by
a third party) to help develop a recruiting strategy
As for third parties, staffing
companies, and contractors, here are very simple
rules:
- Trust but verify. Audit your suppliers; ask
for proof of compliance. Hold them accountable,
you and your company are at risk.
- Look at low ball offers with a careful eye.
If a deal is too good to be true, it probably
is. With 4% unemployment, it is rapidly becoming
an employee market no matter what the skill level.
You have to ask yourself, if you are operating
legally and can’t do it for the numbers
someone else is quoting to you, how can they
legally afford it?
The above article is a summary of a very real
environment that all employers are now facing.
On the bright side, we found the ICE representative
that we spoke with very friendly and interested
in helping. The goal of ICE is to catch criminals,
not someone that forgot to do the paperwork.
For
more information on auditing your processes and
suppliers, sites such as www.ice.gov can provide
you with direction to government sources and companies
like Accelerator Consulting Group, www.AcceleratorCG.com are specialist in compliance, auditing and sourcing.
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