Working Together

Immigration and Customs Enforcement has not been coy about the purpose of its January 10 raid on some one hundred independently-owned 7-Eleven franchises around the country. The agency’s press statement about the raid said specifically that the action was meant to “send a message to U.S. businesses.” An ICE official elaborated on that message in further remarks to the Associated Press, saying that “[w]e need to make sure that employers are on notice that we are going to come out and ensure that they’re being compliant.  For those that don’t, we’re going to take some very aggressive steps in terms of criminal investigations.”  Calling large-scale actions of this sort “just for starters,” he also noted that increased enforcement is “not going to be limited to large companies or any particular industry – big, medium and small.”

This hard-nosed approach to employer compliance, and accompanying publicity to make sure that everyone knows about it, are consistent with the approach ICE has taken in the current administration to undocumented workers themselves.  The agency has touted a 40% year-over-year increase in immigration arrests, among other burgeoning activity.

With ICE taking such an intimidating line, and foreshadowing a possible expansion of enforcement activity to all corners of the economy, employers may be concerned that even a few innocent mistakes could cause them to get caught up in an aggressive enforcement wave.  So what should they do?

First, they should recognize the difference between a real mistake and not doing enough to live up to affirmative obligations. The law requires an employer to proactively determine whether an employee is authorized to work when hiring him or her, not just to refrain from hiring if the employer happens to find out that the employee is unauthorized.  This subtle-seeming distinction comes into stark focus when the government confronts an employer with a violation, and the employer protests that “I never checked her documents because I didn’t have any reason to think she might not be authorized to work,” or “sure, his driver’s license looked a little funny, but I don’t really keep up with what out-of-state licenses look like.”  Failure to fulfill an employer’s affirmative obligations to request the required documents, and to make reasonable judgments about their authenticity, amounts to constructive knowledge that an employee is not authorized to work.  And constructive knowledge will be held to be a violation, not an honest mistake.

The vehicle for fulfilling the affirmative obligation to investigate is the I-9 form. But the I-9 is not just a compliance hurdle to be overcome.  Used properly, it is also functions as a potential defense against liability for employing workers who later turn out to have convincing fraudulent papers or the like.  For employers to take advantage of that protection, however, they must complete the form consistently, timely, correctly, and reasonably.  Among other things, this means always completing it within three days of an employee’s beginning work, always examining the originals of provided documents to ensure that they appear genuine, and retaining the completed forms for the required periods.  Employers should also consider additional measures that help in periodic self-auditing or in responding to an investigation, like consistently keeping copies of the provided documents.

Good faith is a touchstone of the process, and especially important amid heightened and aggressive enforcement. Employers who make documentable efforts to follow I-9 procedures scrupulously, who keep good records, and who engage in regular training, not only minimize the chances of genuinely inadvertent violations in the first place, but are likely to find themselves in a much less uncomfortable position if any are discovered.