Immigration Enforcement Affecting Small Businesses

Here is a reprint of an article recently forwarded to me and is used with the permission of Clark & Trevithick.

What do temporary employment and contract employment agencies in Oregon, Illinois, and Ohio; meat packers in Arkansas, Iowa and Colorado; construction companies in Mississippi, Missouri and Kentucky; a landscaping company in Florida; a textile company in Boston; and a chain of Japanese restaurants in Baltimore all have in common with the former owner of ten Dunkin’ Donut shops in Connecticut?

They’re all facing investigation and/or criminal prosecution in federal court by the newly invigorated and very aggressive United States Immigration and Customs Enforcement Agency, or “ICE”, for short¹. As the result of what in many cases started as a so-called administrative “Worksite Enforcement” investigation, the companies listed above, including individual owners, officers and managers, are facing criminal charges including hiring illegal aliens, harboring illegal aliens, money laundering, identity or document fraud and Social Security fraud, to name just a few. The consequences of conviction of many of these crimes includes jail time (harboring illegal aliens provides for a 10 year prison sentence and money laundering is a 20 year felony). In addition to prison time, ICE also has forfeiture authority to go after a company’s or individual’s assets. In FY2006 alone, ICE seized $29 million dollars through forfeiture from various employers around the country.²

Worksite Enforcement
Among its many tasks, ICE has recently focused its Worksite Enforcement teams on identifying and prosecuting companies in industries that employ unskilled or lower skilled workers that historically include undocumented aliens. The examples cited above certainly fall into this target group. While this kind of investigative activity was part of the now assimilated Immigration and Naturalization Service’s charter, the approach by ICE since 2003 is dramatically more aggressive and noteworthy.

By way of example, ICE agents recently investigated a small chain of Japanese restaurants in the Baltimore area. In March 2006, ICE agents executed search, arrest and seizure warrants at three of these restaurants and four related houses where they found 15 undocumented workers living in “deplorable conditions”.

Under the old INS approach to such a case the investigative agents would have proceeded administratively, conducting an investigation of the restaurants to determine whether necessary paperwork and forms were up-to-date and in compliance with immigration laws and regulations. Finding the undocumented workers would have generated an administrative fine in the neighborhood of $20,000, or less and probably no criminal charges.
Under the new regime instituted by ICE, the following actions were taken against the restaurant owners:

The owners were arrested and charged with money laundering (possible 20 year sentence) and harboring illegal aliens (possible 10 year sentence);

ICE agents seized 8 luxury vehicles, 10 bank accounts, 3 safety deposit boxes and cash found during the searches of the homes and restaurants;

Ultimately, the owners pleaded guilty to several felony charges and agreed to forfeit approximately $1.1 million in assets.³

Compliance Requirements
Current laws and regulations require that all employers in this country employ only individuals who are authorized to work in the United States. In order to comply, employers must verify on a Form I-9 the identity and employment eligibility of all employees, including U.S. citizens. These I-9 Forms are retained (including electronically) by the employer and must be made available for inspection by ICE, the Special Counsel for Immigration-Related Unfair Employment Practices or the Department of Labor. Failure to properly complete and retain the Form I-9 can subject an employer to civil penalties ranging from $110 to $1,100. Perhaps more significantly, ICE agents frequently use the agency’s Forensic Documents Laboratory to determine the authenticity of the various documents (including I-9’s) used to establish employment eligibility.⁴ Maintaining fraudulent documents can lead to the kinds of investigations and prosecutions noted earlier in this article.

Conclusion
Any employer, but especially one who employs lower-skilled alien workers, needs to pay particular attention to the laws and regulations that dictate the verification of employment eligibility of its workers. A new day has dawned in the form of new Worksite Enforcement investigations conducted by an aggressive and well-funded agency with a clear mandate to arrest and prosecute not just undocumented workers, but their employers and managers as well. The consequences of failure to comply with the laws in this area can include large fines, asset forfeiture and even prison.

1 ICE was created on March 1, 2003, combining the investigative and intelligence arms of the former Immigration and Naturalization Service (INS) and the U.S. Customs Service, and is part of the Department of Homeland Security. (ICE Fiscal Year 2006 Annual Report.)

2 “No More Slaps on Wrist for Work-Site Violations”, Julie L. Myers, Department of Homeland Security Assistant Secretary for Immigration and Customs Enforcement, as appeared in the Kansas City Star, June 26, 2007, ed.

3 ICE Fact Sheet, dated June 16, 2006, “Case Example—Worksite Enforcement”.

4 ICE Fact Sheet, dated April 26, 2005, “Electronic Signature and Storage of the I-9 Employment Eligibility Verification Form”.

Eric Dobberteen focuses his practice in the areas of commercial litigation and trial work, white collar criminal defense and local, state and federal regulatory enforcement proceedings. For more information regarding the Firm’s litigation practice, go to www.clarktrev.com.

The New Reality of Overtime Violations

Overtime is an incredibly complicated issue and generally misunderstood by both employers and employees. Yet the growth rate of lawsuits in this area is astounding.

Today's New York Times has a good article on the new realities of overtime.

Keep in mind - especially in California, the overtime rules are significantly more restrictive than federal laws.

Managers - And A Sense of Humor

Last month, Robert Half International published a survey which showed 97 per cent of those surveyed responded that they are more inclined to follow managers who make them laugh or laugh at themselves while maintaining professionalism.

Your employees don't have to like you, but they have to like working for you.

The corollary: Don't take yourself too seriously!

Courtesy Toronto Globe & Mail

Love Contracts

As much as many employers would love to regulate and/or minimize relationships between employees, they rarely work, according to today's Asbury Park Press.

It is brutally difficult to regulate employees' behavior away from the office. And in California, it is illegal to prevent employees from dating each other. (Although you can prohibit supervisors from dating direct reports).

How To Handle Maternity Leave

Maternity leave is always a tricky issue - not just because of the federal Pregnancy Discrimination Act (which applies to businesses with 15 or more employees), or California's Pregnancy Disability Leave (which applies to all businesses).

The additional issue is 'reasonable accommodation'. While you as a manager must treat pregnant women equally, it is advisable that you treat them with utmost courtesy and accommodate their needs as much as practicable.

Although each situation is always difficult, consistency in treating your employees is essential.

This article, via CePro, is a good start.

And get your policy in writing right way!

Howard Stern A Great Boss? It's True!

One trademark of a great leader is the ability of that person to engender loyalty among their employees. How long those employees stay with their boss is a measurement of loyalty.

An example of that is Howard Stern. Yes, that Howard Stern: the controversial radio show host. No matter what you might think of Stern's shtick (and I for one am a fan), there's no denying the fact that he's a great boss, by the benchmark established above.

• Robin Quivers, his on-air castmate, has worked with Stern for 1981 and followed him through three radio stations, two cities and now to Sirius Satellite Radio.
• Fred Norris, Stern's writer and sound effects expert, has been with him since 1979.
• The Stern Show producer and majordomo, Gary Dell'Abate, has worked for Stern since 1984.
• Even Stern's engineer, Scott Salem, has worked for Stern for 15 years.

Despite the inevitable moments of pique or petty fighting, the fact that these (and more) people have stayed with Stern for this period of time shows they like working for and with him.

Your employees don't have to like you, but they have to like working for you.

It would be easy to say that these individuals are only staying with Stern because of the lucrative compensation they receive, or the notoriety and level of fame associated with the show.

But there's more to it than that. If an employee is truly unhappy with their boss, they're going to eventually leave. All of Stern's employees have had those chances - through station changes or the move to satellite radio. But they stayed, and the reason is they love their jobs. Study after study shows that happiness in the workplace is the number one reason people stay with their job.

And as the years pass, professional relationships inevitably evolve. You become used to each other's idiosyncrasies and are able to adapt (or, get used to) the quirks of your co-workers.

In Stern's case, his well known quirks (a penchant for timeliness, low tolerance for fools, and his fastidiousness) were once a sore spot for his co-workers. But they've learned how to tolerate them and indeed embrace them. Whereas 15 years ago, Fred Norris would be subjected to teasing from Howard and threaten to leave the show; today the same teasing merely evokes genuine laughter.

Of course there's another reason for Stern's success as a leader, and it's a strategy that any great leader must adopt: Stern is intensely loyal to his employees. He is loathe to fire anyone, almost to a fault. And loyalty from a boss is repaid by loyalty to a boss. His people are equally loyal to him.

So - despite the antics, the strippers and the crassness - Howard Stern has built a hugely successful empire not just because of his talent, but also by his success as a leader.

Limiting Employee Internet Access

Today's Baltimore Sun talks about the trend of businesses limiting employee access to the web. The article cites 'security' and 'productivity' concerns, which are obviously true.

But having access to the web at work also creates employer liability of harassment and discrimination - for example, if one employee sees on a monitor something that would make him or her uncomfortable (sexually explicit photographs, religious statements, etc.) - that could make a case for harassment.

In addition to a firewall, businesses should absolutely have a statement in the Employee Handbook stating access to the internet is for business use only. Most lawyers I speak with would also add a statement indicating the employer has the right to monitor employee usage of the internet and e-mail.

Investigating Harassment Claims

From the northjersey.com website comes advice from Steven Adler at Cole, Schotz, Meisel, Forman & Leonard, P.A.

It is always advisable, especially with smaller businesses, to have an outside consultant working with counsel, conducting the investigation - especially to have the sense on an unbiased person who questions the parties involved.