Highlights from the FBA I-9 Worksite Enforcement Conference in Chicago
In April, the Chicago Chapter of the Federal Bar Association held its 10th Annual Workplace Enforcement and Immigration Conference, an all-day deep dive into the latest I-9, E-Verify, and corporate compliance issues facing employers today. With speakers ranging from top government officials to prominent immigration and employment law attorneys, the conference provided a veritable smorgasbord of information pertaining to America’s most favorite two-page employment form.
And as employers are now keenly aware, the I-9 compliance landscape is constantly changing. During the past several years, we have seen unprecedented activity relating to Form I-9 and E-Verify compliance, including I-9 audits, OSC discrimination settlements, and new E-Verify monitoring tactics (to name just a few). The result has been a virtual patchwork of employment verification requirements which are often difficult for employers to track, let alone maintain. While a few of these subjects have been covered recently in this blog, we’re going to highlight some new information which came to light during this year’s conference.
ICE, Statistics, and Re-Audits
The Section Chief of Worksite Enforcement, Immigration and Customs Enforcement (ICE), provided a broad overview of the agency’s current enforcement priorities (which have largely remained the same since 2009). First and foremost, ICE’s mission is to promote a “culture of compliance” through civil and criminal investigations. This enforcement-centric approach is evident in some of the recent worksite statistics. In particular, the ICE representative noted that the agency had collected $35.5 million in fines, judicial forfeitures, and restitution for I-9 and immigration related violations in FY2015 (which represented a slight increase over the 2014 numbers). She also confirmed that the agency continues to use a wide variety of enforcement activities including Form I-9 inspections, debarment of federal contractors, and indictments of owners and managers who knowingly hire and/or continue to employ unauthorized workers.
The ICE representative also reminded the audience that all employers are subject to I-9 inspections, regardless of industry, workforce, or size. In this regard, ICE continues to operate its mega I-9 audit facility in Crystal City, VA (known as the “Employment Compliance Inspection Center”) for audits involving very large employers (1,000+ employees) or in cases where there is national significance. The ECIC also assists field offices in responding to certain policy questions – a necessary and often thorny task, given the many gray areas of I-9 and immigration law. At its core, however, the ECIC essentially acts as a “force multiplier” enabling local ICE offices to pursue investigation and review of I-9s on a much larger scale.
This also allows ICE to focus on those really egregious violators – the ones who continue to flaunt their non-compliance – through ICE led re-audits and inspections. The ICE representative indicated that re-audits will typically occur within 18 to 24 months after the original audit and resolution, particularly in cases where the employer simply received a “warning letter” in lieu of a fine. If a company was assessed a penalty and paid it, company would normally not be re-audited unless information was discovered that the employer was continuing to observe non-compliant I-9 practices and procedures (including the hiring and employment of undocumented workers).
Kevin Lashus, a partner in the Austin office of Fisher Broyles, discussed what he foresaw as the biggest problem in re-audits – the continued employment of undocumented workers leading to criminal prosecution. “Being inspected is terrible but being inspected in the public eye is worse, especially if your company relies on support for business financing,” said Lashus. “If you are criminally prosecuted and there is a notice, it’s often impossible to get short-term financing. Many companies end up in bankruptcy.” As for who gets targeted for criminal prosecutions, the ICE representative stated no industry in particular, while discussion leader Marketa Lindt opined that restaurants, agro-processing companies and manufacturing were the most frequent targets.
Attorney Julie Myers Wood stated that she had seen a trend in criminal prosecutions of companies for alleged abuses of B-1, H, and L visas, especially in the technology industry. In the past, these would have been brought as civil cases, but in the wake of the Infosys case, U.S. attorneys are taking a very keen interest in whether an employer is misusing a specific visa category in order to avoid paying higher wages to US workers. Often, these cases begin with whistleblower complaints from aggrieved US workers and quickly turn criminal. When ICE is interested, they’ll issues subpoenas, question employees at the border, and even seize laptops and other property. To make matters even more interesting, some US attorneys are improperly accusing companies who employ L visa holders of failing to pay the prevailing wage (a requirement for H’s, but not L’s). Ms. Wood felt that to a certain degree prosecutors are often blaming companies for the broken immigration system.
During the past few years, many employers have adopted electronic I-9 systems in order to streamline their onboarding process and eliminate mistakes. While there are numerous benefits to going paperless, the ICE representative noted that many systems out there are not always mirroring the paper I-9 process (a necessary requirement).
Based on their recent audits, it appears that some electronic I-9 vendors had failed to consider the regulations at all. Common errors include audit trail deficiencies, missing electronic signature components, and the failure of the system to generate a printable and viewable hardcopy of the I-9. ICE is also looking very closely at the overall security of the system to ensure it has the requisite safeguards to guarantee that the electronic I-9 has not been compromised.
Despite these challenges, the ICE representative noted that employers using electronic I-9 systems tend to have very few (if any) technical violations. Nevertheless, she reminded everyone that employers are ultimately responsible for the software programs they use. Put more simply – ICE does not audit software companies; they audit employers. Therefore, it’s super important that you carefully vet your electronic I-9 software of choice to ensure it conforms to all of the “paper I-9” and “electronic I-9” requirements.
Updates from the Bench
Administrative Law Judge Ellen K. Thomas (who recently retired after an incredible career) also spoke at the conference and provided up-to-date statistics from the Office of the Chief Administrative Hearing Officer (OCAHO) – a unit which has jurisdiction over employer I-9 sanction cases, immigration-related unfair employment and practices, and immigration-related document fraud. As of late April, there were approximately 40 cases pending at OCAHO with 26 cases involving employer sanctions and 14 cases of discrimination/retaliation. With Judge Thomas’ departure, it is unclear who will hear future I-9 sanction and discrimination cases (since Judge Stacy Paddack, who rejoined OCAHO in 2014, has accepted a reassignment to another agency).
Judge Thomas also provided a broad overview of six I-9 sanctions cases that are currently on appeal in the circuit courts (the most on appeal in a very long while). These cases are potentially significant as they may result in new guidance or interpretation of law. Some of the issues under review include the weight to be given to the Virtue memorandum in calculating fines; whether section 2 of the I-9 can be signed based on corporate knowledge instead of personal knowledge; and whether copying documents could ever be allowable in lieu of completing section 2 (a position which seems most untenable when considering prior case law).
The panelists also discussed the often-confusing notion of “good faith” with respect to mitigating I-9 penalties. Judge Thomas noted that her principal inquiry is whether the employer took reasonable steps to learn and follow the I-9 rules before ICE shows up. In this regard, it’s extremely important for employers to carefully document those efforts – particularly if their I-9 process ever goes astray. Practically speaking, this means creating an I-9 compliance policy which carefully outlines all of the “good faith” efforts towards following the I-9 rules and procedures.
A panel of attorneys, Rick Gump, Nici Kersey, and Nicole Wetmore, discussed a variety of topics involving corporate compliance strategy. One of their topics was honesty policies – where an employer states if an employee engages in an act of dishonesty, the employee is subject to discipline and termination. All of the speakers agreed if a company has such a policy (which is not required by law) it should be in writing, consistently enforced, and communicated to its employees.
The panel also discussed three Technical Assistance Letters (TALs) issued by the Office of Special Counsel with respect to honesty policies. The most recent one, dated January 8, 2015, found an employer with a consistently followed policy of terminating employees for providing false information during the hiring process may have a legitimate non-discriminatory reason for termination. The key to this determination is whether the policy was “consistently applied.” The two earlier TALs were similar and the November 1, 2012 TAL cited OCAHO decisions in support of terminations for consistently applied honesty policies – Simon v. Ingram Marco, Inc. (2003), and Aguirre v. KDI American Products, Inc. (1996).
Ms. Kersey discussed two other important points on honesty policies. First, under California law, an employer may not discharge an employee for updating or attempting to update personal information “based upon a lawful change of name, social security number, or employment authorization document.” Thus, an employee receiving an EAD through DACA will be protected from termination or other adverse action. Additionally, one should determine where the employer has a collective bargaining agreement (CBA) with a union because the CBA may have provisions covering these situations.
Several panels also discussed the often-thorny issues relating to independent contractors and I-9s. One of the difficulties with the independent contractor issue is that there are so many different tests for determining whether an individual is an employee or an independent contractor – including the economic realities, common law control standard with ten factors, hybrid economic realities/common law control test, and the specific regulatory factors enumerated at 8 C.F.R. 274a 1(j). In U.S. v. Saidabror Siddikov d/b/a Beyond Cleaning, Judge Thomas applied the regulations test and ruled that the cleaners at issue were independent contractors (and thus no I-9 was required). However, in the process, she noted quite clearly that we do not “live in a binary world,” cautioning that there may be many employment situations where an employee could easily fall into the gray zone of joint employment for I-9 purposes.
As Ms. Kersey stated, if there is a staffing agency, it is their responsibility to complete the I-9 form. However, there may be issues relating to joint employers and PEOs (Professional employer organizations). And remember, as Mr. Gump pointed out, a company cannot contract with another company for staffing purposes when it knows the staffing company is utilizing undocumented workers. The underlying company can (and will) be held liable for any violations relating to their employment practices.
Form I-9 and E-Verify rules continue to evolve at a rapid pace, fueled in large part by the ever-changing nature of employment in the U.S. However, one thing has remained constant in recent years – employers are being held to a much higher standard of compliance than ever before. If you’re new to the wonderful world of I-9 compliance, we highly recommend that you carefully review your I-9 compliance program (including the use of new electronic tools) to ensure you’re staying way ahead of the curve.
And in the meantime, stay tuned for our second article on the FBA Worksite Conference where we will discuss the I-9 discrimination, ICE audits, and some practical issues in implementing electronic I-9s.