March 14, 2008

Since the Department of Homeland Security's Immigration and Customs Enforcement arm has been conducting frequent public and aggressive investigations into illegal hiring at worksites, companies are paying a lot of attention to worksite issues.

FORM I-9
Prudent company officers, determined to learn from the misfortunes of their competitors, have sent out feelers within HR departments to determine whether their own hiring practices are within the bounds of the 1986 Imigration Reform and Control Act. Companies already completing Form I-9 employment eligibility verifications, and which had proper hiring practices in place prior to the latest rash of worksite raids, tightened existing procedures.

In addition to the mis-match letter from the Social Security Administration, Form I-9 is a useful government window into a companies cognizance of, and adherance to, legal hiring practices. Depending on the state of a company's I-9s, it may be one of the indications of possible attendant illegal activity. Form I-9 belongs to the government and, as its custodians, companies must represent the form upon request.

Recent enforcement actions inform the public that findings in the government's intitial review of these forms may be part of a later civil or criminal case against a company or individuals. The December 2006 Immigration and Customs Enforcement action again Swift & Co. makes clear that a company voluntarily registered in one of the employment verification programs offered by the DHS can still be the subject of an enforcement action.

Very simply, the employment verification programs may not detect the unlawful activity. Even a law-abiding employer can't expect to truly delay or prevent DHS enforcement action predicated upon stopping identity theft, port security or human trafficking. Although clearly stating that neither criminal nor civil charges had been brought against the company, the ICE press release also stated that 30 percent of its I-9s were suspect and seemed to imply that the company itself hosted an environment where criminal activity was permitted to thrive.

Worksite compliance is more than just an immigration issue facing employers. It is a serious mandate by DHS requiring a company to display outright intolerance of Immigration and Control Act violations, thereby eliminating any portals to the criminal activity that often accompanies illegal hiring.

Setting a Management Policy
Diffuse points of hire make uniform hiring practices challenging for a company. The clean reputation enjoyed by headquarters may not be truly widespread to remote sites or to its hiring partners.

Following a merger or aquisition, there may be work-related violations that are both inherited and ongoing. In-house counsel and human resources may be miles apart in both location and thought process. The employment verification task may be given to the most junior of HR employees; when there is a site audit or investigation, internal support and communication responses can vary widely between various deparments.  Smart companies are asking even harder questions than ever about their hiring practices and preparing to address the answers. Neither is an easy nor an avoidable task these days.

Company and industry culture may preclude a concerted effort to create a compliance and crisis management policy. Site and floor managers may receive conflicting signals regarding a company's dedication to compliance with IRCA, appearing to give license to the use and acceptance of fraudulent documents, word-of-mouth recruitment and deliberate us of undocumented workers through subcontractors and other violations, in an effort to get the job done. 

Allegations of unfair, immigration-related employment practices may also arise during heightened employer scrutiny, as hiring teams try to steer clear of undocumented workers. Some or all of this may occur quite outside official company knowldge. Inter-agency cooperation makes for smoother ICE investigations, even absent official information-linking via computer, this should give even the most law-abiding of companies pause.

As the investigations continue, what can a company do to protect itself?

Prudent companies need to work with their advisors before an audit or investigation occurs. Risk analysis and crisis response  planning may require that a company establish a relationship with white-collar defense counsel and public relations firms, in the event that an internal or external investigation reveals information of which the company's officers were unaware.

If Congress enacts a guest worker program, honest employers may be - and should be - stunned by how many of their presumptively legal employees come forward to request assistance with legalization. Assistance of counsel may be required to protect the company then, particularly if the company's hiring agents were aware or should have been aware of the illegality of some workers. 

The law - abiding company is not overly concerned about the DHS investigation reaching its doors. Nor should it be, as long as the company's self-investigation follows what appears to be DHS's own practices: Using Form I-9 review as part of the compliance analysis and then using those findings to prompt further investigation.

NICOLE EZER, counsel in the Houston office of Sutherland Asbill & Brennan LLP, is a member of the firms corporate practice group.