LawLogix Interviews Department of Justice Attorneys

[Editor’s Note: Today’s article is courtesy of the U.S. Department of Justice, Attorneys Edward Gallagher and David Searle, who were kind enough to grant me an interview regarding the Department’s role in investigating and prosecuting crimes that directly impact the U.S. employers and workforce.] 1) Please describe your role at the U.S. Department of Justice:

Mr. Edward Gallagher: I am a supervisory Assistant United States Attorney and oversee the major offenders section of the criminal division in the Houston office. This section includes immigration crimes, organized crime, gang violence, civil rights, and human trafficking.

Mr. David Searle: I am an Assistant United States Attorney and am assigned to the major offenders division of the criminal division. I prosecute immigration crimes and organized crime. In the immigration area, my cases include worksite enforcement, document fraud, illegal re-entries of previously deported aliens, and alien smuggling. So far as worksite enforcement is concerned, our office in Houston, like most U.S. Attorney’s Offices, investigates and prosecute people who hire undocumented workers and, in some cases, the undocumented workers themselves and even the business entity that employs them.

2) Most employers are probably familiar with the U.S. Attorney’s Office but have very little exposure to this office (for good reason). Can you tell us a little more about how the DOJ’s office gets involved in an investigation of an employer regarding its business practices? Would you kindly share with us some of the biggest factors that DOJ considers when deciding to move forward with an investigation?

Our worksite enforcement cases are referred by the Department of Homeland Security (DHS), Homeland Security Investigations (HSI), formerly known as ICE. Many, if not most, worksite enforcement matters are handled administratively by DHS-HSI and are never referred for criminal prosecution. When we do receive a case, we place stock in DHS-HSI’s view that the case warrants a close look by our office. Our decision to ultimately move forward with an investigation and, then, possible prosecution, is dependent upon priorities and the egregiousness of the target’s conduct.

Our district prioritizes certain types of worksite enforcement cases:

First, we are especially interested in pursuing matters that involve a potential risk to national security, including critical infrastructure such as airports, military installations, and the Houston ship channel. (Last year, for example, we worked with DHS-HSI to investigate a company with a sizable undocumented workforce that produced equipment for overseas military personnel.)

Second, our office prioritizes investigations involving employers with a significant undocumented workforce. While it may not always be the case, we have found that employers with a high percentage of undocumented workers in their workforce tend to be those who ignore the requirements of the Employment Verification System and, in some case, actively recruit illegal labor.

Finally, we also prioritize the prosecution of employers who treat their undocumented employees poorly. These employers, most of whom do business in labor-intensive industries, often have a history of Department of Labor wage and hour violations and/or OSHA violations. Human trafficking violations in the labor context, involve force, fraud, or coercion in the workplace under Section 1589 of Title 18. Employers that take advantage of employees in a “forced labor” situation, usually involving some form of debt servitude, face the most serious consequences. We always seek to rule-out trafficking facts in every worksite case before we begin to examine criminal liability with other statutes.

3) In a recent report, a Washington state herb grower was fined $1 million for knowingly employing unauthorized workers. Your colleague, U.S. Attorney Jenny Durkan, cautioned employers about the risks of knowingly employing unauthorized workers. What additional advice would you add to Ms. Durkan’s comments?

The Washington state case was particularly egregious. Following an administrative notice of inspection that saw the employer terminate some 86 suspected undocumented workers, the company rehired the workers after representing to DHS-HSI that they had been fired, and then had them work a “secret” night shift to avoid detection.

Employers need to realize that, while IRCA proscribes the knowing hiring and continued employment of undocumented workers, other immigration statutes that cover the harboring of undocumented workers, as well as encouraging or inducing them to reside in the United States, carry a lower mens rea. Under these statutes, the Government must only prove that the employer had a reckless disregard for the undocumented worker’s immigration status. See 8 U.S.C. Section 1324(a)(1)(A)(iii), (iv).

Unlike IRCA, which imposes a misdemeanor violation and up to six months imprisonment and a $3,000 fine per undocumented worker hired or employed, the harboring and encouraging/inducing statutes are felonies and prescribe a maximum prison term of up to ten years in cases of conspiracy or where the offense is committed for private financial gain. Besides prison time, employers face a maximum fine of $250,000 and the forfeiture of any property that represents that gross proceeds or was used to facilitate the crime. As a practical matter, this could include a monetary judgment for wages paid to undocumented workers or even revenue derived from the sale of products manufactured with a predominant illegal workforce. Employers who allow the employees to reside on employer property, pay rent out of their paychecks, or transport the employees to and from the work site, are more likely to face felony charges pursuant to Section 1324.

Employers also need to pay special attention when they receive notice of a criminal investigation. The obstruction of justice, unnecessary delay in remediating the workforce or, as in the Washington state case, lying to DHS-ICE about the continued employment of suspect workers only increases the likelihood that the employer, including possibly the business entity itself, will face criminal indictment.

4) For the average employer who, in good faith, conducts employment verification in a controlled and regimented manner, would they have to worry about the U.S. DOJ?

IRCA criminalizes both the knowing hiring and continued employment of undocumented workers. It is certainly possible that an employer could conduct employment verification in good faith but later learn that a particular worker has slipped through the cracks. It would be incumbent upon the employer, after receiving this information, to take appropriate action or face possible criminal prosecution. Companies that plan to acquire other companies, either through merger or direct asset purchases, should also conduct appropriate due diligence to assess the employment eligibility of any newly-acquired workers.

If you’ve been a faithful reader of our blog, you’ll know by now we always encourage our readers to learn more. You can read more about the U.S. DOJ’s office here.