Employers who use federal visa programs may become subject to worksite enforcement investigations from various federal agencies. The primary worksite enforcement mechanism utilized by U.S. Immigration and Customs Enforcement (ICE) is the I-9 audit. Additionally, the U.S. Department of Labor (DOL) utilizes worksite enforcement audits to investigate employers concerning wage and hour compliance, as well as H-2A, H-2B and H-1B visa program compliance. These enforcement mechanisms are usually administrative. However, criminal investigations and sanctions are also used as an enforcement tool against employers, particularly when an administrative investigation indicates that a serious immigration or labor violation exists at the worksite. The best protection against administrative fines and/or criminal sanctions is to assure strict compliance with immigration and labor procedures before an investigation is initiated. But employers must also understand their rights so they can respond properly when worksite enforcement investigations are initiated. Here are some tips employers may use:
- Notice – Employers are usually entitled to receive a written appointment letter when the government investigates I-9 and/or wage-and-hour matters. When a written appointment letter is not provided, as in the case of “walk-in” investigations, the DOL inspector must inform the employer of its right to three days’ notice. Employers may insist on proper notice concerning these administrative investigations.
- Scope – Employers must produce certain documentation in any worksite enforcement investigation and have a right to know the general scope of an administrative proceeding. The scope of an ICE or DOL investigation and required documentation should generally be explained on the written notice. Usually, an employer must produce I-9 Forms, payroll records, quarterly tax records and wage reports. Employers may question agents concerning the scope of an investigation. Employers may clarify facts that agents have misstated. Employers may object to areas of inquiry that exceed the permissible scope of a worksite enforcement investigation. Employers are under no obligation to give property and information that the government is not lawfully entitled to obtain. Employers may review any warrant/subpoena to ascertain its legality and scope. If agents decide to seize documents, an employer may ask for a copy of any seized records. Although ICE agents will generally always review I-9 Forms, DOL officers generally do not conduct I-9 inspections in connection with complaint-driven investigations. DOL officers generally do not investigate the employer for hiring violations, nor will they make inquiries regarding the immigration status of workers. ICE agents, on the other hand, may inquire as to the immigration status of workers.
- Search and Seizure – Employers are protected against unconstitutional searches and seizures in worksite enforcement investigations. As a general rule, the DOL and ICE may not take an employer’s property without lawful authorization, i.e., a warrant, a subpoena, or the employer’s permission. Although federal agents may enter an employer’s property to initiate an investigation, federal agents may not remain on an employer’s property after being asked to leave unless they present a warrant or properly issued subpoena. Employers may accompany agents at all times while they are on an employer’s premises. Agents may not force employers to leave their property while an investigation is pending. Employers may refuse to sign documents until they have spoken with counsel. Employers and their management-level employees have the right to refrain from answering an investigator’s questions until they speak with an attorney. Although employers and managers must allow investigators an opportunity to question certain non-management employees, those non-management employees may refuse to speak with investigators until compelled to do so. Employers may not coerce or intimidate non-management employees who are subjected to questioning, but employers may discuss the questioning with those non-management employees before and after interviews occur. When speaking with non-management employees who are (or have been) subject to questioning, employers must take care to avoid conduct that may be construed as retaliation.