The weather outside is frightful. Large chunks of hail are beating the earth in the form of "Notices of Inspection" (NOIs), delivered by U.S. Immigration and Customs Enforcement (ICE). These NOIsome ICE chunks are hitting the doorsteps of more and more U.S. employers (1,000 have just landed). Even in unlikely San Francisco I understand that at least two large employers are shivering as they prepare to respond with loads of Forms I-9 (Employment Eligibility Verifications) on past and present employees and other requested business records.
In the past, large employers adopted a Goldilocks approach when seeking shelter from the storm. Businesses of heft and breadth realized that the risk of employer sanctions had historically remained small since the former INS mostly audited small or mid-size employers, and ICE, the successor agency, preferred high-visibility raids over the more tedious inspection of immigration paperwork. Thus, large employers pursued a strategy of "just right": Neither so much vigilance over I-9 compliance practices that might risk an antidiscrimination charge, nor so little diligence that might trigger a raid.
All that has changed with the Obama Administration's focus on civil enforcement through paperwork inspections, followed predictably by fines, orders to terminate unauthorized workers, and criminal prosecution of businesses and individuals the Justice Department considers flagrant immigration lawbreakers.
Given the change in enforcement strategy, large employers (and those of lesser size) can no longer rely on a Goldilocks approach, as Ted Chiappari and I explain in "Goldilocks' Lessons for Dealing with Bearish Immigration Police," published on February 23 in The New York Law Journal. Our "Goldilocks" article offers detailed precautions employers of all size should consider immediately to mitigate potential ICE-storm damage:
1. Review Immigration Compliance. Engage an experienced immigration law firm (other than the one used to prepare and submit the employer's immigration petitions and applications) to conduct a full-fledged 100% audit of all I-9s for current and former employees (including those who joined as a result of corporate acquisitions) and evaluate all other immigration-compliance obligations.
2. Decide How the Auditor Should Present the Report. Consider the pros and cons of an oral versus a written audit report. An oral report advises management without creating what may be an unhelpful paper trail, if not all of counsel's curative recommendations are followed; whereas a written report, submitted to ICE if and when the company is audited, demonstrates good-faith compliance.
3. Expect Bad News and Deal with It. Even the most persnickety employers who try their darndest to winnow out unauthorized workers are likely to discover that some segment of the workforce has no right to work and must be terminated while the I-9s of others must still be corrected. Careless employers will fare worse. Consider conducting the audit in phases, tranches or by worksites so that, if workers must be terminated, replacements can be hired or engaged through a temp agency, and then trained, all of which can occur in less disruptive ways than if a sizable roster of unauthorized employees were fired at once. Also, be sensitive to the possibility that discrimination and wrongful-discharge claims or union grievances may be lodged, and behave in ways to minimize harm from those forms of employee blowback.
4. Develop and Enforce an Immigration Compliance Policy. Announce to employees and the world your company's immigration policy, namely, that you hire only authorized workers, do not violate antidiscrimination rules, and appropriately discipline those who fail to comply. Consider other best practices to foster that central policy of maintaining an authorized-only, discrimination-free workplace, maybe even some best practices from IMAGE.
5. Place Controls on Employment-Based Immigration Sponsorship. Make sure the decision to petition for work-visa or green-card benefits on behalf of each foreign worker is justified in writing under objectively fair criteria. Protect against cronyism. Centralize due-diligence and signature authority concerning the factual representations made in all immigration submissions. Require systematic record-keeping and compliance with other obligations such as posting and good-faith recruiting procedures.
6. Add Immigration Protections to Vendor Contracts and Manage Vendor Conduct. Avoid the risk of deemed co-employment and of being tainted by the possible immigration violations of vendors and consultants. Make sure immigration-related attestations made for the benefit of vendor employees are vetted for accuracy and that vendors are contractually required to adopt and enforce their own immigration compliance policies, with contractual penalties imposed for noncompliance.
7. Strengthen Global Mobility Management. It's not just about complying with U.S. immigration laws. Foreign countries' immigration statutes can be just as nasty when the rules are violated. Other laws outside of the immigration domain, such as the Foreign Corrupt Practices Act, the new United Kingdom anti-bribery legislation, taxation, employee benefits, employment laws, and conflicts of law, as well as European Union and national regulations relating to privacy and electronic-data transmission, must also be honored. Bad immigration press and sanctions in one country may spark a storm of brand damage around the world.
In short, Goldilocks' behavior (lying dormant in a domain where cold-hearted ursine characters are likely to frequent) is no longer safe for prudent employers. Beware the ICE Bears.