RECENT RAIDS AND HIGH PENALTIES HAVE EMPLOYERS EXAMINING THEIR WORK AUTHORIZATION PRACTICES

Practice Tips for Work Authorization Compliance:

  • Conduct an annual self-audit of your current and terminated employees’ Form I-9s;
  • Consult with counsel regarding best practices for conducting a Form I-9 self-audit; and
  • Be aware of laws protecting employees from discrimination, retaliation and invasion of privacy in connection with internal and government audits.

 

On January 10, 2018, U.S. Immigration and Customs Enforcement (“ICE”) conducted a large-scale raid of nearly 100 7-Eleven stores nationwide, including 12 in California. The raid was intended to uncover whether 7-Eleven franchisees were employing individuals with invalid work authorizations, and were in full compliance with federal Form I-9 requirements. This coordinated show of force, according to ICE Deputy Director Thomas Homan, was meant to “send a strong message to U.S. businesses that hire and employ an illegal workforce…”

ICE’s latest raid is consistent with the aggressive rhetoric and actions of the new administration in Washington, which has made the enforcement of immigration laws, including holding employers accountable for failure to comply with work authorization procedures, a top priority. In 2017, employers whose work verification’s failed to comply with the Immigration Reform and Control Act and the Immigration and Nationality Act (“INA”) paid a steep price. Just ask fast-food giant Panda Express, who paid $400,000 in civil penalties to settle a U.S. Department of Justice investigation into alleged violations of the INA. Similarly, staffing agency, Alpine Staffing, Inc., incurred $276,000 in penalties for various substantive violations, including: failing to prepare Form I-9s for over 340 employees; and improperly completing Form I-9s for another 130 employees.

Considering the federal government’s emphasis on enforcement and the potential for hefty penalties, employers should be taking the necessary steps to ensure their work verification practices and Form I-9s are in compliance by conducting periodic and thorough self-audits, while simultaneously ensuring that they are protecting their employees’ rights under relevant state and federal laws.

Conducting Form I-9 Self-Audits Help Uncover Errors and Avoid Penalties

To help avoid crippling penalties and the potential public relations nightmare that comes with being audited or raided by ICE, employers are increasingly conducting Form I-9 self-audits. The purpose of an internal self-audit is to ensure compliance with employers’ verification obligations under INA when determining the eligibility of an employee to work in the United States, and to help ensure that the Form I-9s are being administered and completed correctly. Employers are encouraged to seek the help of outside counsel to determine the scope of the audit, ensure the audit is not being conducted on any potentially discriminatory or retaliatory basis, and to review the Form I-9s for any substantive or technical errors.

It is critical that the audit avoid targeting any particular group of employees on any discriminatory or retaliatory basis. To avoid such issues, an employer may wish to audit all Form I-9s, or a select a random sample of its forms. The party reviewing the Form I-9s must document any errors found, including whether any Form I-9s are missing, and how to correct the errors discovered. This process must also be applied to terminated employees because employers must retain a terminated employee’s Form I-9 for three years after the employee’s date of hire, or for one year following the employee’s termination (whichever is later).

By identifying and memorializing the errors and corrections, employers may not only avoid potential penalties but also improve their verification process. Employers are encouraged to conduct audits on an annual basis to maintain compliance.

Be Mindful of Your Obligations to Your Employees

Employers must not only ensure that work authorization forms are compliant, but they must also ensure that they are protecting their employees’ rights. Employers must protect employees from discrimination and harassment, and protect their privacy. In additionally, various states have recently passed laws aimed at strengthening employee protections in connection with the enforcement of work authorization laws.

For example, effective January 1, 2018, California law forbids employers from voluntarily consenting to any warrantless raids by the federal government. Specifically, the new laws, which impose fines between $2,000-$5,000 for a first violation, and $5,000-$10,000 for subsequent violations, prohibits employers from:

(1) Providing “voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor” without a judicial warrant; and (2) Voluntarily granting such immigration agents permission to “access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.” CA Gov. Code §§ 7285.1(a)) and 7285.2(a)(1).

The same bill requires employers to provide notice to their employees that an ICE audit is pending. Generally, when ICE begins an immigration inspection it must notify the employer directly through a Notice of Inspection, and seek a waiver of notice provisions to gain immediate access to an employer’s Form I-9 records.

Employers Must Be Prepared

There is every indication that 2018 will be an explosive year on the immigration front, as the federal government continues to emphasize immigration enforcement and consider the status of hundreds of thousands of immigrants in the United States. Employers must take practical measures to prepare themselves in the event that their workforce becomes a target of inquiry from the federal government. An internal self-audit is a vital tool that employers have to proactively address any issues they may have. Employers must also be mindful of their state’s employee protections, specifically those relating to unfair immigration-related practices.

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