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RAISING THE STAKES FOR WORKER ELIGIBILITY VERIFICATION

January 31, 2010

By Elise A. Healy, Esq., Spencer Crain Cubbage Healy & McNamara pllc

Concern over undocumented workers has long been a major issue for the food service industry. In 2009 the stakes have dramatically increased for food industry employers who don’t take seriously their responsibility to verify the employment eligibility of all their employees. By law employers must check the identity and employment eligibility documents of each worker within three days of hire, using the Department of Homeland Security (DHS) I-9 Employment Eligibility Verification form. This year a new I-9 establishes a more limited list of eligibility documents that employers may accept, and also emphasizes the importance of not accepting expired documents. Another risk is that too many employers ignore “no match” letters concerning employee information provided to the Social Security Administration (SSA) and Internal Revenue Service (IRS). DHS’s Immigration and Customs Enforcement (ICE) views this practice as a sign that the employer’s business model depends on the knowing use of illegal workers.

Now the Obama Administration has dramatically expanded its worksite enforcement activities, and this is expected to continue. On July 1, 2009, ICE launched a major audit initiative by issuing Notices of Inspection (NOIs) to 652 businesses nationwide – more than ICE issued throughout all of last fiscal year. The target employers were selected for inspection as a result of leads and information obtained through other investigative means. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. This new initiative illustrates ICE’s increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

This enforcement effort is an example of the Obama administration’s renewed focus on “egregious employers” – in other words, those who knowingly hire unauthorized aliens. The administration intends to send a strong message to employers in business sectors that attract such workers, most definitely including the food service industry. In this way, the DHS and the Administration will demonstrate that they have a commitment to enforcing existing laws, to prepare the ground for broader immigration reform next year.

The only realistic response for food service employers is to prepare for government inspections and audits by taking steps to ensure they are compliant with the Immigration Act, in every location where they do business. Violations found at multiple locations can lead to the criminal charge of engaging in a “pattern and practice” of violating the Act. It is not enough to have a company policy against hiring unauthorized workers. Employers must find out what their managers and supervisors are actually doing on the ground. And, if an employer receives a notice of audit from the government, knowing what records to provide, to whom, and by when is essential. To do otherwise is to risk document subpoenas, raids to execute search warrants for documents and persons, stiff fines and even criminal indictments and convictions of company owners and managers who are found to violate the law.

Elise Healy, top attorney in the field of immigration law with Spencer Crain Cubbage Healy & McNamara pllc, represents U.S. and foreign companies, ranging from multinationals to start-ups, in all types of immigration matters affecting international personnel transfers. She can be reached at ehealy@spencercrain.com or 214.290.0004.

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