While immigration law has been bubbling to the surface in recent months, the issue quickly jumped to the forefront in April as the U.S. Immigration and Customs Enforcement (ICE) conducted raids on IFCO Systems, the nation’s largest pallet recycler. Law enforcement authorities arrested 1,187 people from more than 40 individual locations in 26 states.
The IFCO raids were the largest single worksite enforcement operation against a company in American history. The raids represent a new approach for the Department of Homeland Security (DHS) as it moves from a policy of fines and civil penalties to more aggressive enforcement and the leveling of criminal charges against businesses that knowingly skirt immigration laws.
The IFCO investigations have sparked concern among industries around the country where many immigrant workers are utilized, especially the pallet industry. Even some companies with thorough screening processes have taken notice because it can be easy to acquire fake documents, especially Social Security cards.
Businesses just want to know what they have to do to be legal and limit their liability risk. While there are no guarantees that your company will be safe from an ICE investigation, a smart company can reduce the risk of doing anything that could get it in trouble with federal authorities. Even conscientious companies may have illegal workers on the payroll if people apply for work using fraudulent documents and a fake identity. You cannot completely eliminate the chance of someone getting past your system. However, a thorough and reasonable approach to I-9 compliance can shield you and your workers against criminal allegations. The name of the game is risk reduction.
IFCO Allegations
In the case of IFCO, the allegations go way beyond basic I-9 compliance issues. According to federal court documents, IFCO managers knowingly hired illegal workers, helped them acquire fake documents, instructed employees to tear up or put fraudulent information on tax documents to avoid taxes, shuttled illegal workers to and from work every day, set up housing for illegal workers and took rent out of their paychecks, hired workers without identification or IDs that bore no resemblance to the person possessing them, changed payroll records to underpay workers for overtime hours, and gave illegal aliens tips on how to avoid being caught by authorities. As ICE stated in its press conference, the alleged behavior is blatant disregard for the law.
Criminal complaints were filed against seven IFCO managers or former managers in connection with the company’s employment practices. All these individuals were charged with conspiring to transport, harbor, and encourage and induce illegal aliens to reside in the United States for commercial advantage and private financial gain.
IFCO maintains that the allegations are limited to a few isolated locations. Mike Hachtman, IFCO’s vice president of business development, said, “Each of our operations runs fairly autonomously. We are proud of the entrepreneurial spirit that each of our managers has. And it does appear that those alleged incidents are isolated.”
At the time of publication, federal authorities refused to implicate IFCO senior managers and executives in any illegal activity. But ICE chief Julie Myers said, “There’s no allegation of that at this time. It’s certainly an ongoing investigation. I will tell you, though, that we are troubled by some of the things that we’ve seen at IFCO.”
I-9 Compliance
The I-9 employment eligibility verification process was instituted as part of the Immigration Reform and Control Act of 1986. All employees (citizens and non-citizens) hired after November 6, 1986 must complete the applicable sections of the I-9 form. The employer is responsible for ensuring that the I-9 process is followed.
Employers must retain completed I-9s for three years after the date of hire or one year after the date employment ends, whichever is later.
Just because ICE discovers illegal aliens working at a company doesn’t mean that it did anything wrong. If a company properly followed the I-9 procedure and a worker just snuck by with fraudulent documents, the company and its managers have a good faith defense. The government must prove that a person had actual knowledge of the unauthorized status of the employee.
The Social Security Administration (SSA) offers a free verification service that employers can use to check the viability of social security data provided by new employees. While the service is available to all employers and third-party submitters, it can only be used to verify current or former employees and only for wage reporting (Form W-2) purposes. Please note that the service helps identify incorrect Social Security data not detect identify theft. Registration can be completed online at http://www.socialsecurity.gov/bso/bsowelcome.htm. The SSA offers telephone support by calling 800/772-6270.
Many pallet companies are concerned about being sued for discrimination if they too strictly screen some new hires. One of the easiest ways to shield your company from discrimination claims resulting from I-9 practices is to have standardized policies that apply to all employees. The general rule is if you treat everyone the same, it is very hard for anyone to prove discrimination.
Companies should consult legal counsel with expertise in immigration and workplace law to review their I-9 compliance and worker verification procedures and policies.
What Do I Have to Do to Be Legal?
That’s the question that everyone is asking. Keep in mind that it could all change if Congress passes major immigration reform this year. For now, the answer to that question is both simple and complex.
It appears that ICE is going after companies that blatantly ignore immigration laws or traffic in illegal aliens. Companies that have a legal system in place and follow it should be safe from prosecution even if it does have illegal immigrants working there under false pretenses. Bill Riley, former national unit chief for ICE worksite enforcement, said, “Managers are not getting arrested for oversight.” In his 15 years in the agency, Riley said that he has never seen a manager or company charged for violating immigration law if the I-9 forms were filled out properly and the company did not know that a worker was indeed an illegal alien. He said that the law provides for a good faith defense against mistakes or simply being tricked by counterfeit documents that look real. Pointing to IFCO, he said, “These weren’t misunderstandings. These allegations are criminal actions.”
Employers must keep proper I-9 documentation and screen all new hires. While employers and their agents are not expected to be document fraud experts, they should use common sense and follow established procedures.
Employers must examine the ID and work authorization document(s) and, if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. According to ICE, if a document does not reasonably appear on its face to be genuine and to relate to the person presenting it, you must not accept it.
As stated above, the key is to develop effective programs, train employees on the procedures and have experienced legal counsel review your policies from time to time.
