The Department of Homeland Security (DHS) announced April 30 that it is shifting the focus of its worksite enforcement strategy to target employers that hire undocumented workers instead of the workers themselves. While it isn't clear what this will mean, labor and employment experts suggest that employers review their company's policies and practices to make sure they won't find immigration enforcement officers at their door (read "Policy Puzzle"). They specifically recommend scrutinizing how the human resources department handles I-9 forms, required to verify employment eligibility for all employees.
"For the past several years, the government has been going after illegal workers," says John Nahajzer, co-managing partner at Maggio & Kattar. "The old system was to review the I-9 forms to get information on [illegal] employees. If they found something egregious [in the employer's files], there would be fines, but they have allowed employers to correct little paperwork errors." But with the government focus now on employers, Nahajzer and other labor and employment attorneys expect a crackdown on those whose I-9 files are not in order.
A revised I-9 form, which narrows the list of documents employers may use to verify eligibility, took effect in April. It is particularly important to make sure those charged with completing the forms understand the changes and the importance of careful compliance.
Sean Hanagan, a partner at Jackson Lewis, suggests four key steps for protecting against a worksite enforcement action:
- Review policies and training: Develop clear policies and processes on hiring and verifying employment authorization. Train human resources personnel on I-9 procedures and employment eligibility issues.
- Conduct periodic internal I-9 audits: An internal audit will reveal whether any forms are missing or incomplete and provide an opportunity to correct the deficiencies before they result in fines.
- Have a damage control plan: A plan provides a roadmap for human relations, government relations, public relations and other key departments so they know how to react in case immigration authorities announce an audit or conduct a raid.
- Stage a fire drill: A simulated raid will prepare affected departments to respond appropriately if immigration agents knock on the door.
Joyce Fleming, partner at Ford & Harrison, adds that it is important to make sure human resources managers--usually the people at the front line of an immigration action--understand the importance of getting the legal department involved if the government signals it is looking at the company's immigration practices.
"In-house counsel need to make sure employees served with notices [of an audit or request for information] know to notify in-house counsel immediately," she says.