Winter Is Here: How ICE’s Worksite Enforcement Is Impacting Employers

Game of Thrones may have ended abruptly, but Immigration and Customs Enforcement (ICE) is not ending its worksite investigations anytime soon and employers are feeling the chill. As part of this administration’s focus on protecting U.S. workers, ICE is working in collaboration with the Social Security Administration (SSA), the Department of Justice (DOJ), and the Department of Labor (DOL) to ramp up its investigations of immigration and labor law violations. Employers should be more thorough than ever in their practices and make compliance with employment and immigration regulations a top priority.

Nothing Burns Like the Cold

Fiscal Year 2018 saw a surge in worksite investigations, business audits, and arrests by ICE’s Homeland Security Investigations (HSI) division. Nationwide there were 6,848 worksite investigations compared to 1,691 in FY17, 5,981 I-9 audits compared to 1,360 in FY17, 779 criminal arrests compared to 139 in FY17, and 1,525 administrative worksite-related arrests compared to 172 in FY17.

Businesses were ordered to pay more than $10.2 million in judicial fines, forfeitures and restitutions. The current interagency cooperation allows HSI to leverage the investigative powers of the DOJ to access additional business records in these efforts.

Additionally, tips called into ICE or the DOL are more likely to lead to an investigation as we have seen firsthand here in the Triangle. It’s critical for employers to know their rights in the event of a visit from ICE. Companies should have a written plan and procedures in place to properly respond to any request made by these agencies. Staff should be trained on what documents ICE must produce before allowing agents to enter private areas of the workplace. Companies should conduct internal audits to ensure compliance with all I-9 requirements and E-Verify, which is mandatory for all North Carolina employers with 25 or more employees.

SSA Joins ICE in Enforcement Surge

In March 2019, the SSA resumed sending “no-match” letters informing employers when names and social security numbers on their employees’ W-2s don’t match agency records. Mismatches may be the result of a typographical error, name change, inaccurate record, or identity theft.

While the letters are not proof that an employee is unauthorized to work, they can indicate a problem in the employee’s immigration status. While the SSA has no enforcement authority, an employer that ignores a no-match letter may find itself on thin ice later during an I-9 audit and face civil or even criminal penalties. Employers receiving no-match letters should make a good faith effort to resolve the issue by notifying affected employees and giving them a reasonable time to correct the error.

Employers should not take any immediate adverse action against an employee as this would violate anti-discrimination laws. Employers may face the cold truth of deciding what comes next when a mismatch cannot be corrected. They may want to consult with an immigration lawyer to see if the employee’s work authorization can be resolved.

Companies should have internal policies in place to ensure they are giving the employee notice and opportunity to correct the mismatch, not discriminating against the employee based on his/her race, national origin or citizenship status, but also requiring termination upon knowing that the employee is not authorized to work in the United States.

DOJ and DOL Battle Employment Discrimination and Labor Trafficking

In July 2018, the DOJ and the DOL began working together to increase investigations of workplace discrimination. As a result, dozens of investigations have been launched, lawsuits filed, and fines levied against businesses.

While protecting workers and rooting out labor trafficking are critical, the interplay of immigration and employment laws can be difficult for businesses to navigate. Federal law prohibits discrimination based on race, national origin, or citizenship status in the workplace as it relates to hiring, firing, recruiting, and employment eligibility verification. These laws impact everything from recruitment ads to the questions asked in the interview process. It affects your on-boarding procedures, outsourcing contracts, and termination practices.

Business policies cannot favor American workers over immigrants and cannot treat immigrant workers differently than American workers. Your human resource personnel serve as your first line of defense. Training is critical to ensure they are well-armed to take on this challenge. Nam Douglass

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