Mr. Gilbert

Human Resources, Recruitment & Training

Your Company’s Employment Eligibility Verification Compliance Program - A Boardroom Concern?

By Jonathan Gilbert, Chair, Gunster, Law Leisure & Resorts Group

It is unlawful for an employer to hire or continue to employ an alien knowing the alien is an unauthorized alien with respect to such employment.
8 U.S. Code § 1324a(a)(1) and (2).

“Effective immediately, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration... Furthermore, ICE will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment.”
ICE Worksite Enforcement Strategy April 30, 2009

Whether you are the Human Resources Director of a major hotel, the Head Greenskeeper at a Golf Club, a Restauranteur, or the CEO of a five-star resort, properly documenting a legal workforce through verification of acceptable identity and employment eligibility documentation and completion of Employment Eligibility Verification (EEV) Form I-9 should be a top priority. This article provides information on current governmental worksite enforcement efforts. Highly publicized administrative and criminal arrests at businesses across the spectrum of industries populate the news on a weekly basis. Just look at the U. S. Immigration and Customs Enforcement (ICE) website (www.ice.gov) and you will see a long list of specific enforcement actions reflecting the soaring number of worksite investigations. As an increased deterrent to hiring illegal aliens, ICE investigations are being used for criminal charges. Of the more than one thousand criminal arrests during 2008, 135 of those charged were business owners, managers, supervisors or human resource employees. As one part of a broader Department of Homeland Security (DHS) interior immigration enforcement strategy, ICE’s focus on the workplace is an attempt to leverage the current mandate for employers to verify the employment eligibility of their workforce and thereby make the U.S. job market less of an attraction for illegal immigration. There is no indication that the emphasis on worksite enforcement will wane in the near future. Indeed, should comprehensive immigration reform be legislated, all indications are that it will increase the current sanctions for non-compliance and make electronic verification of employment eligibility mandatory.

As a prequel to immigration reform legislation in which ICE would like to see enhanced worksite enforcement sanctions and additional compliance requirements, DHS, the Department that includes the ICE agency, has stepped up the enforcement tempo by maximizing the use of existing laws and enforcement tools. First priority is given to investigations involving national security, public safety, or allegations of egregious worker exploitation. However, no business is immune from ICE investigations that are increasingly being used to support criminal charges, such as money laundering and harboring illegal aliens, as well as criminal forfeitures. DHS has administratively raised the value of fines and penalties that can be levied against employers for failure to comply with the EEV requirements. DHS and ICE are scrutinizing the business relationship between companies and their independent contractors to determine if companies are ‘turning a blind eye’ to workforce situations in circumstances that suggest constructive knowledge of unauthorized employment. The threat of a monetary penalty for failure to comply with EEV requirements may pale in comparison to the debilitating disruption of work occasioned by the removal of a significant number of employees. One company claimed that it lost tens of millions of dollars while replacing a substantial portion of its workforce lost in the wake of such an enforcement action.

On July 1, 2009, ICE issued Notices of Inspection (NOI) to 650 businesses nationwide alerting business that ICE would be auditing their hiring records for EEV compliance. This one-day total exceeded the entire number of NOIs for all of fiscal year 2008. Inspection results, information provided by local law enforcement officers, confidential and undercover informants, disgruntled employees, competitors and even the reports from unauthorized employees all may provide leads for further ICE investigation.

DHS has stated its commitment to assisting employers in complying with the EEV requirements. U.S. Citizenship and Immigration Services (USCIS), another DHS agency, recently updated their Handbook for Employers (M-274) to provide more comprehensive guidance and instructions for completing the EEV Form I-9 and ICE publishes a Guide to Selected U.S. Travel and Identity Documents (M-396) that contains examples of acceptable EEV identity and employment authorization documents. ICE has published a list of best hiring practices that are incorporated in its ICE Mutual Agreement Between Government and Employers (IMAGE) program initiated in 2007. Although voluntary, these practices reflect ICE’s perspective regarding an employer’s good faith compliance with the EEV law. IMAGE places an emphasis on self-policing and ICE believes that participation in IMAGE could lessen the likelihood that a company would be found to be in violation as well as enhance the company’s image by linking it to sound hiring practices and avoiding negative exposure due to illegal employee activity in the workplace. ICE also suggests that there is increasing interest on the part of clients in contracting with compliant companies. Participation in the IMAGE program, however, does not protect employers from enforcement actions by ICE although ICE states that participation may be considered as a mitigating factor in the determination of a civil penalty amount should such a penalty be levied. Training on proper hiring procedures, fraudulent document detection and anti-discrimination procedures is also a benefit of participation in IMAGE.

Some of ICE’s Best Hiring Practices include:

• Using the E-verify employment eligibility verification program for all hiring;
  
• Establishing an internal EEV training program and only allowing trained individuals to complete the EEV process;
  
• Arranging for annual I-9 audits;
  
• Establishing a self-reporting procedure to ICE for any violations;
  
• Establishing a protocol for responding to Social Security Administration “No-Match letters”;
  
• Establishing a tip line for receiving information relating to the employment of unauthorized aliens;
  
• Maintaining safeguards against use of the verification process for unlawful discrimination;
  
• Encouraging “best practices” by contractors/subcontractors; and
  
• Submitting an annual report to ICE to track the results of participation in IMAGE.

To encourage broader participation, in June 2008 ICE initiated a two-year “associate member” category allowing employers to take advantage of the benefits of membership while deferring ICE’s I-9 audit and annual report requirement.

E-Verify is a free Internet-based system available to employers in all 50 states. It provides an automated link to the Social Security Administration database and DHS immigration records to assist employers in determining that newly hired employees are eligible to work in the United States. E-verify now includes a Photo Screening Tool that begins to address the identity theft problem, i.e. the fraudulent use of legitimate documents, by allowing comparison of a photograph on documentation presented by the employee to the images stored in the DHS immigration databases. The E-verify program is currently voluntary under federal law. Arizona, Mississippi and South Carolina have made use of E-verify mandatory and other states have made it mandatory for public employers and contractors. In the federal realm, a recent revision to the Federal Acquisition Regulations (“FAR”) that became effective on September 8, 2009, requires the use of E-verify by certain federal contractors.

The Social Security Administration has, for many years, sent “No-Match” letters to employers providing notice that a social security account number and name submitted on an earnings report (W-2 Form) did not match its records. In 2007, DHS published a regulation outlining an employer’s response to such a letter that would protect an employer from ICE’s consideration of such notification in its determination of an employer’s constructive knowledge of unauthorized employment. The regulation was challenged in court, never was enforced and has now been rescinded. However, DHS, in its discussion of the rescission, states that “receipt of a No-Match letter, when considered with other probative evidence, is a factor that may be considered in the totality of the circumstances and may in certain situations support a finding of ‘constructive knowledge.’ A reasonable employer would be prudent, upon receipt of a No-Match letter, to check their own records for errors, inform the employee of the no-match letter, and ask the employee to review the information. Employers would be prudent also to allow employees a reasonable period of time to resolve the no-match with [the Social Security Administration.]”

In this current environment of increased focus on worksite enforcement there are numerous other aspects of the EEV procedures that deserve discussion beyond this those mentioned in this article. As part of a compliance program, hospitality industry employers should consider creating (or reviewing and updating) EEV-related company policy, designating an EEV Compliance Officer, implementing a training program addressing the array of issues involved in proper completion of the Form I-9 and the detection of fraudulent documents while avoiding discriminatory practices, and conducting internal reviews of their EEV practices, procedures and I-9 Forms. The training should also include a discussion of potential responsibility for the unauthorized work status of independent contractor employees.

Jay Carmichael, Esq. contributed to this article. Mr. Carmichael is an Of Counsel Shareholder at Gunster, Yoakley and Stewart, P.A. He is a retired Coast Guard Rear Admiral and former operational commander of the Seventh Coast Guard District headquartered in Miami, Coast Guard Chief Counsel, and senior military assistant to the Secretary, Department of Homeland Security. His practice at Gunster focuses on corporate strategic counseling regarding matters under the cognizance of the agencies in the U.S. Department of Homeland Security. Within Gunster’s Immigration Practice Group, he is the principal contact for issues relating to employment eligibility verification and governmental worksite enforcement.

Jonathan Gilbert is a shareholder at Gunster, Attorneys at Law, where he chairs the Leisure & Resorts Group. He has 15 years of counseling clients on corporate, hospitality and real estate issues. Gilbert concentrates his practice in hotel, resort and private club acquisitions and dispositions, finance, management and operation, also shares and vacation clubs, condo-hotels, club membership programs, and master-planned community, resort and mixed-use project amenity strategies. In 2009, he was selected as a member of the Legal Elite by Florida Trend magazine. Mr. Gilbert can be contacted at 561-650-0573 or jgilbert@gunster.com Extended Bio...

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