Pre I-9 Audit Planning: Prepare for the Worst and Hope for the Best (Part 2 of 2)

[Editor’s Note: Our two-day blog series is courtesy of Valentine A. Brown, Partner at Duane Morris, LLP. (Read Part 1.) Ms. Brown provides five additional worst-case scenarios and suggestions for internal discussions and for drafting policies that will mitigate potential ill effects of internal I-9 audit results.]

shutterstock_59914405 [Converted] 4. Individuals File Complaints with the DOJ Office of Special Counsel: There is no way to prevent an employee or former employee from filing a complaint with the Department of Justice Office of Special Counsel for Immigration Related Discrimination (OSC), but a company can ensure that the complaint will not turn into a full-blown investigation, by following citizenship status/national origin -neutral polices that are applied evenly to all employees throughout the audit process, and throughout its entire immigration compliance system.

The OSC is responsible for investigating and prosecuting I-9 document abuse, (requesting more or different documents than what the I-9 Form requires) citizenship status discrimination and national origin discrimination. It should be noted that the OSC has no jurisdiction to investigate or file suit when the complainant is an undocumented worker. Nevertheless, it has a well-publicized hotline for individuals to report instances where employers may have committed discriminatory acts related to hiring and termination as well as during the I-9 process.

Often the OSC will contact the company immediately and informally to find out what happened in the complainant’s situation. If the company has put into place sound policies and procedures and followed those procedures and is able to explain them to OSC and how they were applied in the situation at hand, there will be nothing for the OSC to investigate. In order to ensure that that communications with OSC are in the company’s best interest, it often makes sense to refer them to immigration counsel to handle. Often companies fear that involving “the lawyers” will somehow make a company seem (more) guilty to the government agency when in fact the opposite is true. When communicating with OSC attorneys, an immigration attorney’s ability to provide a succinct synopsis of company policy and how it was implemented for a particular employee is far more effective than an HR manager trying to explain and justify the company’s decision.

5. The Worst of the Worst Case Scenario Occurs (see Chipotle): In late 2010 Chipotle restaurants in Michigan were investigated by ICE for I-9 and undocumented worker violations. Since then the company has had to let go more than half of its 900 employees in the state. It has been subjected to numerous community protests, employee-organized walk-outs, and very bad press. In addition to dealing with the legal ramifications, including civil and possible criminal charges, the company has had to contend with the basic necessity of keeping its operations running in the face of such a devastating loss of its workforce. Only certain companies will have to prepare for such a difficult and complex result as that of Chipotle’s, but as they say, “You know who you are so don’t sweep the Chipotle possibility under the rug.” Before even undertaking an audit, the worst case scenario should be explained and discussed at the highest levels of company management. With open and frank discussions among company leaders, an emergency preparedness plan can be put into place, which includes clear lines of communication, pre-approved responses and the authority to quickly carry them out when necessary. Companies in this category should seriously consider hiring a PR firm as early in the process as possible to manage the communications to employees, the press and the public. The decision to undertake a self-audit must be made with the input of the General Counsel’s office and with the assistance of immigration audit counsel. Having the audit conducted by outside counsel should be seriously considered, as this will be the best way to protect the results under attorney-client privilege and ensure that no additional laws are violated during the course of the audit.

6. Responding to ICE Audits: All of the scenarios discussed above could occur during a self-audit or during an ICE audit. And while there would not be time to develop detailed policies and procedures during the 3 day period of time given to respond to an ICE audit, there will be time after the forms are submitted, to discuss with immigration counsel and company leadership on how to handle all of the possible outcomes of an ICE investigation. This is especially true for dealing with I-9 Form corrections, suspect I-9 documents and undocumented workers. Once ICE notifies the company of these deficiencies, time frames to respond are very short (normally 10 days), so it is best to anticipate the results of the investigation as much as possible and be ready to respond as soon as the ICE results come in.

7. Pre-Audit Communications to Employees: When doing an in-house audit, it is often prudent to let employees know ahead of time, and advise them of the importance of the project and that they may be asked to provide additional information or documentation. This simple act will cut down on employee uncertainty, unnecessary questions as to why one person was contacted for documentation and another wasn’t while emphasizing the need for timely and full cooperation. It may even be helpful to include information on the policies and procedures that have been put into place so employees will know what to expect.

8. The Last and Most Important Thing: Whatever policies and procedures are put into place, they must be followed consistently for each and every employee. This simple rule is not easy to follow, but the importance of it cannot be overstated. Staying true to pre-audit policy decisions will cut down on the possibility of immigration-related discrimination; reduce complaints to the Office of Special Counsel, eliminate confusion and distrust among co-workers and management; and provide strong back up for managers who may have to make some very difficult employment decisions.