DHS announces new worksite enforcement strategy: what does it means for I-9 and E-Verify compliance?
As an employer, what are the odds of being involved in an I-9 related worksite investigation?
Last week, the Department of Homeland Security (DHS) provided some insight into that question when they released an internal memo which outlines a new shift in worksite enforcement strategy from the various governmental agencies that oversee I-9 and E-Verify compliance.
The memo, issued by DHS Secretary Alejandro Mayorkas, calls for the immediate end of mass worksite operations – specifically, the so-called “worksite raids” that typically involve the simultaneous arrest of hundreds of workers suspected of being in an undocumented status.
While the cessation of raids is clearly the most attention-grabbing element of the memo, it’s hardly a surprise. Worksite enforcement priorities have seesawed over the past twenty years, depending largely on the political party in the White House. Bush ’43 oversaw a series of large worksite raids of factories and meatpacking plants, a practice which was immediately halted under President Obama, and then resumed with gusto under President Trump.
When President Biden took office earlier this year, he promised to restore “sensible enforcement priorities,” focusing on threats to public safety and national security, rather than individuals who have never been convicted of a serious crime. This latest DHS memo reflects this strategic viewpoint.
A Principled Approach
What’s more interesting from an HR perspective are the new enforcement principles and policies promoted by Secretary Mayorkas which put employers (rather than employees) in the bullseye for potential scrutiny. From a 30,000-foot view, DHS will now look to do the following:
- Reduce the demand for illegal employment by delivering more severe consequences to exploitative employers and their agents;
- Increase the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigations; and
- Broaden and deepen mechanisms for coordination between the Department of Homeland Security and the Department of Labor, the Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board, and state labor agencies.
Elsewhere, Secretary Mayorkas notes that DHS intends to focus on “unscrupulous employers” in order to most effectively protect the American labor market, the conditions of the American worksite, and the dignity of individual (i.e., the employee).
But what does this all mean for I-9 compliance? Will the stopping of “mass raids” mean that you don’t have to worry about an I-9 audit as well?
I wondered (aloud) this very question last week as I poured through the memo, looking for any subtext I could find. Fortunately, I had the opportunity to chat with I-9 advisor extraordinaire, Dawn Lurie over at Seyfarth Shaw, who noted that I-9 audits will continue to be a solid tool in ICE’s arsenal for uncovering the types of “bad behavior” committed by the most unscrupulous of employers.
I think this is exactly right and is further supported by various investigations that we’ve seen during the past few years. Many in HR may remember the eye-popping $95M worksite penalty levied against Asplundh Tree Experts, a Pennsylvania utility contractor charged with perpetrating a scheme to hire and rehire undocumented workers over a six-year period.
What you may not recall, however, is that the Asplundh investigation actually began with an I-9 audit in November 2009, providing the government with the initial evidence of potential wrongdoing and a perfect vehicle (re-audit) to follow-up with the employer again (which they surely did).
It’s also worth noting that unlike mass worksite operations (which are very expensive), I-9 audits can be initiated relatively quickly through a routine administrative process. During the past few years, ICE has implemented even more efficient procedures for the service of Notices of Inspections (NOIs) to businesses, including service via certified mail rather than an in-person visit.
Bottom line: all indications are that I-9 NOIs (what some call “silent raids”) are here to stay, with increases expected to make progress on DHS’ employer-focused strategy.
E-Verify under the microscope
The DHS memo also references problems with the E-Verify system, which can be used by unscrupulous employers to exploit undocumented workers. Director Mayorkas instructs agency leaders to “identify the policies and measures that are in place to ensure that E-Verify is not manipulated to suppress unauthorized workers from, or to punish unauthorized workers for, reporting unlawful labor practices such as substandard wages, unsafe working conditions, and other forms of worker exploitation.”
Mayorkas also directs the agency leaders to provide recommendations on how E-Verify can be further strengthened to ensure it is not misused as a tool of exploitative labor practices.
Takeaways for Employers
Now that worksite enforcement is back on the government’s radar, employers need to ensure they are fostering their own “culture of compliance” in preparation for whatever new policies may be coming down the pike. Fortunately, there are some very simple strategies you can implement to get you started back onto a path of compliance:
(1) Raise Form I-9 Awareness – above all else, employers must avoid the tempting trap of remaining willfully blind to I-9 and immigration violations, especially if you operate in a decentralized manner. If you haven’t examined your Form I-9 practices in a while (or at all), now’s the time to do so through an attorney led audit which identifies potential problems and outlines plans for a speedy remediation.
(2) Train Staff on both I-9 and E-Verify rules and procedures – the key to a successful compliance program is having knowledgeable and trained staff who can navigate the sometimes rocky waters of I-9 and E-Verify process and procedure (which can easily change at a moment’s notice). Make sure to include tutorials covering the Form I-9, E-Verify (if applicable), and the rules relating to non-discrimination.
(3) Systemize your I-9 and E-Verify process – the lack of a well-defined hiring process can be a recipe for disaster, and leave you with little or no defense to compliance-related allegations (whether those originate from the government or even your own employees). Most experts agree that the best way to systemize your I-9 and E-Verify process is through a smart electronic I-9 system that not only interfaces with your other HR onboarding applications, but also (more importantly) makes sure that you adhere to your various compliance obligations under the law.
If you have any questions or comments on this blog (including self-audit planning or electronic I-9 systems), please feel free to contact us here.