Immigration Enforcement in the Construction Industry March 5-7, 2013 David J. Garrett
(New?) Strategy is to Prosecute Employers businesses have to be held accountable if they exploit undocumented workers
Worksite Enforcement is Record Breaking 3500 3000 2500 2000 1500 1000 NOI Arrests ER Arrests 500 0 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
Anatomy of an ICE Inspection Three general types of ICE investigations of employers: Reasonable Suspicion of Illegal Activity Random Selection Audits Employer s Self-Selection for an Audit IMAGE: ICE Mutual Agreement between Government and Employers program
Reasonable Suspicion Audits Suspect companies are identified through a range of sources: Tips from disgruntled employees Terminated employees when filing for unemployment Surveillance Wired informants Reports from the public ( tips ) Leads developed from other state/federal agencies
Reasonable Suspicion To conduct an investigation, ICE must have a lead and articulable facts. Cannot be based solely on an employee s race, ancestry, or the way the employee looks. U.S. v. Brignoni-Ponce, 422 U.S. 873 (1975). Typical informant: FN worker is picked up at a traffic stop in a 287(g) county (or secure communities), ICE interviews to determine employer and offers a deal in exchange to wear a wire to work.
Random Selection Audits ICE routinely selects employers at random for an audit. Trend is for these random selections to not be so random employers often report they had recent state DOL or US DOL issues ICE asks to see Form I-9 for either all current employees or all of the company s I-9s. Regulations provide for 3 day written notice(a NOI) prior to inspection Employers are always asked to waive 3 day notice Sometimes ICE will try to persuade front desk personnel Just need to take a quick look and pressure tactics have been used
What to do?? Be proactive! Have confidence in your company s documents Form I-9 and E-Verify Records Take steps to gain this confidence: Step 1: Have your documents audited by someone who really knows what they re doing. Identify problems. Step 2: *Get your staff trained* The forms and instructions do not present a complete picture. Fix the problems. Step 3: Create a culture of compliance
Why is this important to you? Construction industry is in the cross-hairs Particularly, construction on Federal and State contracts, but everyone is affected There s bad case law from your prospective This is a political issue. Your company is on the front lines: play offense and not defense You are the one most at risk: Owners, managers and supervisors.
General Contractors Bad case law: Case 1: U.S. v. Fisher Homes. Residential home construction company 2006 Raid at the jobsite: Arrests of 76 alleged undocumented workers Four Fisher Homes supervisors were charged with conspiracy to harbor illegal workers for financial gain The unauthorized workers were notemployees of Fisher Homes they were all employees of subcontractors Government tried to get the supervisors to implicate the officers of the company, and threatened money laundering and racketeering charges against the company owners.
General Contractors Case 2: U.S. v. Wal-Mart From 1998-2003, DOJ investigated Wal-Mart s cleaning contractors (i.e., subcontractors) Concluded that Wal-Mart s subcontractors knowingly hired undocumented workers. October, 2003: Agents raided 61 Wal-Mart stores in 21 states, arrested about 245 illegal immigrants. Who was held responsible??
Wal-Mart $11,000,000 civil settlement agreement. Settlement agreement is the brass ring for prime and upper-tier contractors: To lessen the risk of imputed liability, Wal-Mart now requires subs and lower-tier to agree to strict standards regarding immigration compliance Caution when using this approach: may result in increased liability exposure.
Subcontractors Subs and lower-tier contractors are in a pickle: Even assuming best practices, a prime contractor who goes to Wal-Mart increases your costs Other competing subs may bid lower because they use illegal labor or won t comply with the contract requirements Read subcontract verycarefully. Can you do the requirements? Are you agreeing to indemnify someone else s immigration problem?
You Have Been Deputized Your company has been deputized and you can be prosecuted if you don t do your duty. Playing hard ball: 8 USC 1324 and 18 USC 371 Conspiracy to Transport and Harbor Unlawful Aliens 18 USC 1546 Fraud and misuse of Immigration Documents 8 USC 1956 and 1957 Money Laundering 8 USC 1324(a) Unlawful Employment of Aliens 18 USC 1962 Civil RICO
Employment Plus = Felony Harboring Most common ways to get felony harboring charges: Housing or transporting workers with actual or constructive knowledge of illegal status Warning workers of ICE raid activity Counseling workers to use fake documents Paying illegal workers off the books Transferring workers between job sites to avoid detection Assisting illegal workers to complete Form I-9 with fake documents
Danger Signs Executives failing to understand culture at worksite, and that sins of supervisors and lower-level managers will be imputed to owners and executives Job Site hires Hiring decisions by people with mixed loyalties sympathetic to job seekers desperate for employment Pool of new hires comes mainly from existing workforce family and friends Company reluctant to question authenticity of employee documents for fear of discrimination claims or fear of inability to find workers Management assumes long years of residence = legal status, or that the worker can get a GC quickly Management allows employees to change identities and present new and different documents without questions Company ignores rumors and complaints that employees are undocumented or are using valid documents of another worker Form I-9s: Not maintained, or sloppy without attention to detail
Strategy Part 1 Be proactive: Have confidence in your company s documents Form I-9 and E-Verify Records Take steps to gain this confidence: Step 1: Have your documents audited by someone who really knows what they re doing. Identify problems. Step 2: *Get your staff trained* The forms and instructions do not present a complete picture. Fix the problems. Step 3: Create a culture of compliance
Strategy Part 2 Know they re watching you. E-Verify MOU (required in SC) waived company s 4 th Amendment rights to immigration issues: Agencies monitor your company through E-Verify Investigations triggered electronically through employer behavior profiles in E-Verify USCIS has memoranda of understanding regarding data sharing with ICE and OSC E-Verify is changing: SSN Lock Outs, upcoming changes to the MOU We ve seen investigative techniques in companies just like yours.
Strategy Part 3 Play offense, not defense. Create a culture of compliance Evidence this culture: Training for employees (document it!) Company compliance policies Don t allow truck hood hires Be consistent with hiring process The cost is money in the bank Consider with counsel s help going to Wal-Mart
Strategy Part 4 If you have to play defense, play hard: Train receptionist and HR staff how to deal with State and Federal agents at the workplace. They are your front lines. Have a battle plan: Receptionist hands off inquiry to a senior-level manager that has been trained in Form I-9s Know the difference between a subpoena and a search warrant Know when and how to say no to a Federal official s request (demand) to see documents and tour the facility immediately Call competent, experienced counsel immediately
Questions/Comments? David Garrett (919) 755-1800 dgarrett@nexsenpruet.com Or visit nexsenpruet.com