For many companies, it's that time of year again: Time to prepare and submit budgets for 2013. The vast majority of those budgets will include some amount for training and an additional amount for legal fees; very few will specifically request funds to be spent on immigration compliance projects. Such projects can be expensive and are often a hard-sell, as it is difficult to measure the return on the company's investment (which is in the form of improved processes and fine avoidance, usually only felt when the government comes knocking).
Now, though, more than ever before, it is important for employers - particularly hotels, restaurants, and other hospitality employers - to be proactive in preparing for possible immigration-related government investigations. Why?
- U.S. Immigration and Customs Enforcement (ICE) enforcement activity has reached record levels.
- A large percentage of I-9 inspections by ICE result in fines, which can be avoided by employers who prepare in advance. These fines can be crippling, as they reach as high as $1,100 per employee for even seemingly innocent paperwork errors.
- Most employers have only a very basic policy - or no policy at all - relating to immigration or I-9 compliance. And most have no plan in place to handle a government investigation.
- ICE is not alone. The Department of Justice, Securities and Exchange Commission, and a number of states also police immigration issues. All have increased their enforcement efforts in this area.
- The "raid" may be back. Employers, particularly in the restaurant industry, have begun to report raid-like enforcement initiatives similar to those that more-or-less disappeared with the Bush administration.
- Significant changes to the I-9 form are forthcoming; the form will soon become 2 pages long, and the format and instructions will undergo a massive overhaul. Because employers will need to provide training to prepare for the I-9 changes, they have a good opportunity to provide general I-9 training and to introduce new and improved policies and protocols.
- Employers in the hospitality, retail, food service, manufacturing, and construction industries often face the highest risk in an ICE inspection; due to the historical makeup of their workforces, they may face higher fines and business disruptions when unauthorized workers are discovered during the inspection.
How to Avoid Fines and Liability
It is generally impossible to avoid an ICE inspection, but employers can limit or eliminate risk and liability by proactively preparing for such investigations. To avoid hiring unauthorized workers (and potentially becoming tomorrow's headline), there are numerous steps employers can take.
- providing I-9 training to human resources
- undergoing a voluntary I-9 audit
- using the federal government's E-Verify system
- moving to a compliant electronic I-9 software program1
implementing a comprehensive immigration compliance policy, including: ◦ an I-9 auditing and compliance policy
- an immigration sponsorship policy
- a Social Security no-match policy
- a policy covering dishonestly and willful misrepresentation2
- a policy relating to tips (anonymous or otherwise) that an individual may not be authorized to work
- and an addition to the employee handbook
- putting a government investigation response protocol in place
- ensuring the proper use of, and immigration compliance by, subcontractors
Many hospitality employers will not be able to implement all of the suggested steps at once and must choose 2 or 3 items with the highest impact. Training, an I-9 audit, and a government investigation preparedness protocol may be the three options that most effectively limit liability and risk in the event of an ICE inspection.
To avoid charges of discrimination and fines for paperwork violations (which range from $110 to $1,100 per employee) and for the knowing employment of unauthorized workers (which can reach $16,000 per employee), employers should provide I-9 compliance training sessions – either in person or via webcast – to help recruiters, human resources professionals, and managers identify and avoid the many pitfalls involved with completing, maintaining and reverifying the company's I-9 forms. Immigration counsel is often best-suited to provide this training, and the cost is typically minimal when compared to the potential fines the employer could face if it fails to properly complete the I-9 forms.
All organizations should also conduct internal I-9 reviews on a regular basis before government immigration agents come knocking. But a mere internal audit, without professional legal guidance, may not yield the best results. Immigration counsel with strong I-9 experience will review your I-9s and evaluate errors across a list of more than 100 potential problems. Counsel will then present a carefully formulated analysis, with tailored recommendations for I-9 corrections, policy and process improvements, and enhanced training.
A strong government investigation response protocol will describe the various types of government investigations that a worksite may face (and the agencies that do the investigating), create a team of individuals who will be responsible for responding to the investigation, define the roles of each member of the response team, and outline the steps to be taken in the event of an investigation. A sample plan, together with more information about comprehensive immigration policies, is available here.
The hospitality industry faces one of the highest risks of an ICE inspection. And the outcome of the November elections is not likely to reduce the risk of an inspection. Budgeting for compliance now can reduce or eliminate liability in the future, keeping costs down, giving employers peace of mind, and reducing the likelihood of a reputation-damaging public investigation.