Preparing Your Workforce for I-9 Audits and ICE Raids Contributors: Mary Leigh Pirtle, Jimmy Snodgrass It is impossible for employers in the manufacturing and industrial sectors to ignore the immigration enforcement measures that are prevalent in the current political climate. Employers must prepare their managers and employees for both of these possibilites: 1. A formal audit and inspection. 2. A raid from U.S. Immigration and Customs Enforcement (ICE) to verify compliance with the Immigration Reform and Control Act of 1986 (IRCA). The IRCA penalizes employers for “knowingly” hiring or continuing to employ undocumented (or unauthorized) workers and places the burden on employers to verify worker authorization through the Form I-9 Employment Eligibility Verification process. While ICE raids are more publicized, it is far more likely that an employer will face a formal I-9 inspection by receiving a “Notice of Inspection” issued by either the Department of Homeland Security/ICE, the Department of Labor and the Department of Justice. In contrast, what is commonly referred to as a “raid,” occurs when a federal agent presents an employer with an arrest or search warrant in response to suspected unauthorized activities. ESTABLISHING INTERNAL PLANS AND POLICIES Regardless of whether an employer is faced with a Notice of Inspection or a raid, its employees should be prepared and trained to address law enforcement agents. Employers should create an internal communication plan that is distributed and regularly reviewed with their employees, and applied when any law enforcement agents are present. This internal communication plan should identify a designated representative, or multiple employees, who are knowledgeable about the company’s rights and responsibilities when law enforcement is present. Employees should be trained to direct any law enforcement agent to the designated representative(s) and instructed to inform those agents that they do not have the authority to permit access to private areas of the premises or review documentation. Instead, all documents should be reviewed solely by the designated representative(s), with the assistance of legal counsel, to determine what compliance steps are required based on the type of documentation presented. Generally, only a court-issued warrant will permit an agent access to private areas of a business. For this reason, the internal communication plan should identify which work areas are public vs. private. Private areas should be marked clearly with signage or other barriers to entry. Employees should also be instructed as part of this plan on the importance of respectful and appropriate communications. Finally, employees should be instructed on how to deal with agents who insist on entry despite not presenting the required documentation. If that occurs, employees should document the interaction, including the names of any agents/officers involved, as well as any documents searched, confiscated or copied. Employees also should understand that they should not volunteer information or access to private areas beyond what is permitted by the documentation offered by the agent. In the case of a Notice of Inspection seeking to audit I-9 files, an employer generally has three business days to gather the requested documentation. Companies are encouraged to regularly audit their Form I-9s and supporting documentation to ensure “good faith” compliance with the IRCA, which will better prepare the organization in response to an inspection request. As a reminder, the IRCA requires a Form I-9 to be executed by both the employee and employer no later than three days after the employee’s first workday, and the employer must verify work authorization by examining the required documentation and ensuring that those documents reasonably appear on their face to be genuine and relate to the employee. Form I-9 documentation should be maintained for all current employees during the course of employment, and for at least one year after the date of termination.
3 MANUFACTURING & INDUSTRIAL: OUTLOOK & TRENDS |
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