You Could be Criminally Liable (and not even know it!)

- Contributed by Tom Landry, President, Allegiance Staffing

Illegal immigration is the hottest topic right now, not only in the news, but in Washington, DC and every state house in the nation. While it appears that nothing is going to get done anytime soon, watch out! The politicians will try to show they are doing something by making a show at enforcing the laws already in place. This show of force is something that every employer needs to be aware of and take steps to make sure they are not at risk.

The major difference between this round of enforcement and previous enforcement efforts is the change of violations from civil to CRIMINAL. Previous INS investigations were looking for technical violations: incomplete or incorrectly filed out I-9’s, accepting the wrong documents, not keeping I-9’s separate in their own file, etc. These violations were generally civil in nature and subject to monetary fines. In the post 9-11 world, the playing field has changed. The new enforcement agency, ICE, Immigration and Customs Enforcement, is pursuing criminal charges according to United States Code Section 8. The focus of these charges falls under two words - “Reckless Disregard.” You and your company now may be held criminally liable for not complying with the Immigration Laws of this country. This carries not only larger monetary fines, but also the potential for jail terms.

What Are Your Risks?
There are two major areas where risks exist: your internal practices and third party staffing suppliers. Allegiance Staffing recently sat down with a representative from ICE to find out what this means for the manufacturing industry and what you can do to protect your company.

Internally, you can be at risk if you

• Fill out the I-9’s without making sufficient effort to verify the validity of the documentation. Weak compliance efforts, such as completed I-9’s with bad documentation, will no longer be tolerated.
• If you take no steps to address verification or have no plan to address verification when notified by the Social Security Administration that numbers submitted in your quarterly reports don’t match the people.
• If you blatantly just ignore the law because "you have to get the job done."

Third party staffing providers can put you at risk as well. If you have a staffing provider that is in violation of immigration law an investigation will be done to determine if you had knowledge of the violations. If knowledge existed, among any of your management team, you could be held just as responsible as the staffing company because of “Reckless Disregard.”

How You Can be Accused of “Reckless Disregard”
This may seem extreme but in reality it is very simple case to make. Here are a few scenarios as to how this may happen:

Scenario 1: You have several temporaries on your job that are performing well and you make an attempt to hire them. During your process you discover that they are illegal. What do you do? They are great workers, and they have been here a while. Would you let them continue to work as temps? They are not your employees, right? Wrong, you now have knowledge and have done nothing, hence “Reckless Disregard.”

Scenario 2: During a work break, one of your supervisors is making conversation with a group of employees and he or she asks a temporary why doesn’t he apply for a full time job with your company. The temporary responds that he doesn’t have good papers. What do you do? If you let the person stay as a temp and take no corrective action with the supplier, you are at risk.

What do you do when you are taking proposals from several staffing companies and a few of them are $2 below the market? It sounds great and you can save your company thousands of dollars. You think to yourself, “They are not my employees and the staffing company says they check I-9’s.” You are right…. until ICE shows up and starts talking to you and your staff and one of the above scenarios is discovered. The practice of “don’t ask, don’t tell” doesn’t work. So you have to ask yourself is the risk worth the savings.

What Can You Do To Avoid This Risk?

• First make sure your HR department is in total compliance with the I-9 process
• Set a policy that doesn’t allow anyone in the company to override this process. This particularly occurs when production schedules are tight and "we just need people."
• Have a policy that follows up on notification letters and make sure that it includes all documentation
• Conduct a labor market review (preferably by a third party) to help develop a recruiting strategy

As for third parties, staffing companies, and contractors, here are very simple rules:

• Trust but verify. Audit your suppliers; ask for proof of compliance. Hold them accountable, you and your company are at risk.
• Look at low ball offers with a careful eye. If a deal is too good to be true, it probably is. With 4% unemployment, it is rapidly becoming an employee market no matter what the skill level. You have to ask yourself, if you are operating legally and can’t do it for the numbers someone else is quoting to you, how can they legally afford it?

The above article is a summary of a very real environment that all employers are now facing. On the bright side, we found the ICE representative that we spoke with very friendly and interested in helping. The goal of ICE is to catch criminals, not someone that forgot to do the paperwork.

For more information on auditing your processes and suppliers sites such as www.ice.gov can provide you with direction to government sources and companies like Accelerator Consulting Group, www.AcceleratorCG.com are specialist in compliance, audit and sourcing. You can also contact Tom Landry, President, at Allegiance Staffing, tlandry@allegiancestaffing.com for specific information on ICE and the interview with Allegiance. Coming soon, a white paper with case references and in-depth information on this topic will be available to download from the Prime Advantage website.

Allegiance Staffing specializes in the industrial segment of the staffing industry; with a service scope including manufacturing, logistics, distribution and fulfillment. Its screening process has created an incident rate of 11 per 200K man hours compared to an industry average of 41. The company currently has 15 locations, and is implementing an aggressive growth strategy to add more members to the Allegiance brand.