ICE Enforcement Actions

Read the latest Compliance News Flash by clicking here.  Topics covered in the News Flash include:

  • Ongoing workplace investigations by Homeland Security regarding employers’ workforce;
  • The U.S. Supreme Court;
  • Tips for pre-employment screening of new hires and employees; and
  • Discrimination settlements related to the employment eligibility verification form (aka the Form I-9).

Any compliance related questions?  Please contact me at montserrat.miller@agg.com.

Have a safe and happy 4th of July!

Check out this week’s Compliance News Flash with quick reads about:

  • Background screening operations in Canada and capturing consent.
  • Colorado’s new law safeguarding personal data.
  • Homeland Security and increased workplace investigations.
  • GDPR (need I say anything more for those working on this?).
  • Termination of Temporary Protected Status and work authorization.

Any questions please contact me at montserrat.miller@agg.com.

On January 10 Department of Homeland Security agents raided 100 7-Eleven stores nationwide as part of an effort to ensure employees’ legal work authorization in the United States. This week’s raids stemmed from a 2013 investigation against multiple 7-Eleven franchisees and managers who allegedly employed undocumented workers in New York and Virginia.

Click here to read the Alert I wrote and what to expect if your company is the subject of a Department of Homeland Security worksite enforcement investigation and how to prepare.

Assembly Bill 450, signed by Governor Brown in October of 2017, is effective this month. It imposes several new immigration-related responsibilities on California employers with respect to worksite enforcement actions and compliance with the requirement under federal law to complete and maintain the Employment Eligibility Verification form (aka “the Form I-9”) for employees.

What employers need to know about the new law:

  • It affects public and private employers;
  • Employers (or their agent) cannot provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor unless they provide a judicial warrant;
  • Employers (or their agent) cannot provide voluntary consent to an immigration enforcement agent to access, review, or obtain an employer’s employee records without a subpoena or judicial warrant. However, there is a carve out in the law for the Form I-9 when Immigration and Customs Enforcement (ICE) agents present a Notice of Inspection (NOI).  Please note that an administrative agency such as ICE can issue subpoenas, meaning subpoenas are not always issued by a court;
  • Employers must provide notice (within 72 hours) to employees and if applicable their union representative, of any Form I-9 inspection by ICE as well as any other inspections of employment records conducted by an immigration agency;
  • Following up on above notice requirement to employees and their union representative, the new law has additional disclosure requirements which must be followed by an employer when requested by an affected employee.  Namely, an employer must, upon request, provide a copy of the NOI and any follow up documentation describing deficiencies identified as a result of the inspection by ICE (typically this would be the Notice of Suspect Documents or Notice of Discrepancies, both issued by ICE);
  • It limits re-verification of employees employment authorization unless specified by federal immigration law; and
  • Allows for civil penalties for non-compliance ranging from $2,000 – $10,000.

All of which is to say that employers in California should have a plan in place to address worksite enforcement actions by ICE agents so as to ensure that agents are not allowed access to nonpublic areas of a place of employment unless they provide a judicial warrant allowing such access.  This plan of action to address office visits by ICE isn’t limited to California employers. As a general rule employers should have a plan in place that when ICE agents arrive at a place of employment to deliver a NOI they are escorted to a private conference room or office and the NOI is handled by a manager or supervisor.  The NOI is the document that starts an administrative worksite enforcement action by ICE and by law, employers are provided with three business days to provide ICE with the Forms I-9 and other documentation listed in the NOI. Employers should train personnel to never waive the three business days requirement to provide ICE with the Forms I-9.  Also, train personnel to not allow ICE agents to interview employees short of a warrant. Finally, as a general rule employers should not handle worksite enforcement investigations without the assistance of legal counsel, especially in the current environment that will focus more heavily on penalizing employers for their failure to comply with the immigration requirements to hire and maintain a legal workforce.

Any questions about California’s new immigration law or ICE worksite enforcement actions please do not hesitate to contact me at montserrat.miller@agg.com.

This week’s Compliance News Flash features information on the GDPR and the assessment of administrative fines, remote hires and the employment eligibility verification process, Homeland Security and worksite enforcement for small businesses, the end of Temporary Protected Status for Nicaraguans, and information about my presentation on developing a compliant background screening program at my firm’s upcoming Employment Law Seminar in Atlanta next week.

Click here to read the News Flash.

On September 12th at 2 pm EST I will be presenting on a SHRM sponsored webinar entitled “What You Need to Know Now About Form I-9 and Immigration Enforcement.”   My co-presenter will be Mark Wobbe from Equifax.  Click here to read more about this upcoming free webinar.

Topics we will discuss include:

  • The new Form I-9 that is effective September 17, 2017.
  • Tips for mitigating potential risk as site visits and audits by U.S. Immigrations and Custom Enforcement (ICE) agents from the Department of Homeland Security increase.
  • Best practices for improving Form I-9 compliance during new hire onboarding.

I hope you can join us.

As my readers know, my legal practice covers advising organizations on both compliance with the Fair Credit Reporting Act as well as the Immigration and Nationality Act.  Background screening and immigration.  In the end, both federal laws address employee onboarding issues related to work authorization and background checks.

In addition to writing my (almost) weekly Compliance News Flashes, over the past few months I’ve written a series of bylines for different publications focusing on immigration-related worksite enforcement and how employers can protect themselves regarding their compliance with the employment eligibility verification requirements (i.e., the Form I-9). To facilitate compliance I thought it would be helpful to include these articles, as well as articles I’m quoted in along with a free webinar, in one blog posting with links.

Bylines:

  • The Record-Keeping Mistake You Could Be Making published in Construction Business Owner — “The Employment Eligibility Verification form—known as the Form I-9—is a deceptively difficult form for employers to complete, even though it is only two pages in length and its sole purpose is to document identity and work authorization. Proper completion of the Form I-9 is especially important in the industries with large workforces, given today’s environment. An employer’s good faith compliance with Form I-9 requirements can establish an affirmative defense to allegations of knowingly hiring unauthorized workers.”
  • Are Your Employment Practices Setting You Up for a Discrimination Claim? published in QSR Magazine — In an article published by QSR Magazine on April 18, 2017, Montserrat Miller helps leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).
  • Are Your Employment Practices Setting You Up for a Discrimination Claim? published in FSR Magazine — In an article published by FSR Magazine on April 18, 2017, Montserrat Miller helps leaders within the restaurant industry understand the employee onboarding process to avoid claims of unlawful discriminatory practices under the Immigration and Nationality Act (INA).
  • Strategies to Maintaining a Legal Workforce as Concerns about Increased Worksite Enforcement Increase published in Georgia Contractor — see pages 30 and 31.

Quoted in:

Get Ready for More Immigration Audits,” Human Resource Executive Daily

In an article published by Human Resource Executive Daily on June 5, 2017, Montserrat Miller discusses immigration enforcement in the United States and how employers should prepare. “Make sure people on the front lines, such as receptionists, know what to do when an agent arrives. They also should know what documentation ICE agents are required to present when they arrive, and whom to summon for help, including HR leaders and legal counsel,” said Miller.

Immigration Enforcement Efforts Expected to Increase,” Society for Human Resource Management (SHRM)

In an article published by SHRM on May 18, 2017, Montserrat Miller is featured prominently in an article discussing how immigration enforcement related to the workplace–raids, audits and site visits–are likely to increase under the Trump administration and how audits will focus on visa fraud, not just Form I-9 violations.

Webinars:

In June I did a webinar for the Georgia Restaurant Association entitled Workplace Investigations by the Department of Homeland Security – Is Your Restaurant Ready?  — this free webinar is of general applicability and I encourage everyone to take advantage of free legal advice.

Compliance News Flashes:

If you’re interested in receiving the Compliance News Flashes (latest edition) please email me at montserrat.miller@agg.com. This newsletter provides quick blurbs on compliance issues related to background screening and immigration.

On Monday, June 5 from 2:00 to 3:00 pm EST I will conduct a free webinar on “Workplace Investigations by the Department of Homeland Security – Is Your Restaurant Ready?”  The webinar is sponsored by the Georgia Restaurant Association.  Much, if not all, of what I’ll be discussing regarding employers compliance with immigration laws during the hiring process relates to all employers and isn’t limited to restaurants.  During the webinar I will discuss the following topics:

  • Factors leading to a workplace investigation by DHS – ICE
  • How to prepare for a workplace investigation by ICE
  • How to respond to a Notice of Inspection
  • What happens during an ICE audit
  • The role of the Department of Justice in workplace investigations
  • Collateral consequences of workplace investigations

Click here to register.