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.

Sue Your Boss - 2007

The trend with employees who are mistreated by their bosses is only escalating. Most poor managers are simply in denial that they treat their employees poorly.

Now comes word that four more states (in addition to California) are considering a sue your boss law.

It's particularly sad because behavior is something we have the ability to control.

(Thanks to Bob Rosner of ABC News' Working Wounded blog).

The Worst Bosses In America

Although these stories are amusing, it's a sobering reminder for all managers to apply the "Golden Rule" when leading people.

It's easy to forget where we came from, but the effect that even our smallest comment can have on an employee can be substantial.

From Working America.

Sexual Harassment Training Does Not Invite Lawsuits

A fear of some business owners is that the teaching of sexual harassment training to employees is an invitation to encourage lawsuits.

This study, from Caren M. Goldberg at American University, disputes that notion.

In fact, she concludes, the very fact that training was provided may be the best defense in case of a lawsuit.

California mandates sexual harassment training for businesses with 50 or more employees(California AB 1825, now Government Code 12950.1) - and other states are expect to follow soon.

How To Screw Up An Employee Handbook

Many small businesses - in order to save money - often "borrow" and modify a handbook from another company, and often times that other company must comply with requirements that don't impact a small business.

Case in point: a company who doesn't need to offer FMLA benefits, but mention it in their handbook, may be required to offer it anyway.

(From Sedgwick, Detert Moran & Arnold LLP)

The "No-Match" Letter

From our friends at Allen Matkins...

Significant Changes Announced To Employer's Obligations Upon Receipt of No-Match Letter

The Department of Homeland Security ("DHS") announced on August 10, 2007, its adoption of regulations identifying specific steps an employer should take as a "safe-harbor" upon receipt of a No-Match Letter from the Social Security Administration. Employers are encouraged to take immediate action and review and modify their No-Match Letter response procedures to comply with these recent changes. Failure to do so could result in a finding that the employer had "constructive knowledge" that the employee named in the No-Match Letter was an unauthorized worker, thereby exposing the employer to significant civil and criminal penalties.

A No-Match Letter is:

• a letter to the employer from the Social Security Administration stating that the combination of name and social security account number submitted on an employee's W-2 earnings report does not match the agency records; or
• a letter from the U.S. Immigration and Customs Enforcement Agency notifying the employer that the immigration-status document or employment-authorization document presented or referenced by the employee is not consistent with DHS records.

In the past, there has been uncertainty regarding how an employer should respond to a No-Match Letter. Now, employers who follow the Safe-Harbor Procedures are protected from being found to have constructive knowledge that an employee is an unauthorized worker. While employers are not required to follow the Safe-Harbor Procedures, the DHS warns that not doing so exposes the employer to the risk of being found to have constructive knowledge of unauthorized status. This carries with it considerable civil and criminal penalties.

The Safe-Harbor Procedures do not safeguard against liability where an employer has actual knowledge that an employee is an unauthorized worker.

The new regulations will take effect 30 days after publication in the Federal Register, which is expected shortly. Accordingly, employers should review and modify their No-Match Letter response procedures to the extent necessary to comply with these recent changes.

Re-Recruiting Your Employees

Said it before, we'll say it again: employees consistently state they don't get enough feedback about their performance from their bosses. This affects your retention - if an employee doesn't feel appreciated (or doesn't know where they stand with their boss) - they'll leave.

MRINetwork has a list of 10 questions to ask your employees; their answers to these questions can often determine whether or not they'll stay on their job:

1. If you could make any changes about your job, what would they be?
2. What things about your job do you want to stay as they are?
3. If you could go back to any previous position and stay for an extended period of time, which one would it be and why?
4. If you suddenly became financially independent, what would you miss most about your job?
5. In the morning, does your job make you jump out of bed or hit the snooze button?
6. What makes for a great day?
7. What can we do to make your job more satisfying?
8. What can we do to support your career goals?
9. Do you get enough recognition?
10. What can we do to keep you with us?

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Meal & Break Provisions in California

Generally speaking, workers in California must be given a 30-minute meal break for every five hours of work, plus 10-minute rests every four hours.

The penalty for non-compliance is an hour's pay for every day the law was violated - going back three years.

Today's Sacramento Bee discusses the issue, and the controversy it's creating.

Benefits of Paying Employee Tuition

NEW YORK -With the start of the school year not far off, employees of small businesses might have a hankering to take some courses. And company owners might want to think about paying for them to take some classes - the learning may help their careers and in turn, help the business retain its best workers.

Many companies are willing to pay for courses that will help employees upgrade their skills or learn new ones. Others go further, making tuition reimbursement an employee benefit that even covers courses not directly related to the job.

"For me, it's really straightforward: We value the employees we have here," said Kyle Corkum, president of Landquest, a land development company in Raleigh, N.C. "We're not interested in having people come and go like a revolving door. We're trying to upgrade the capability and knowledge of our people."

Landquest is currently paying for a staffer to take a preparatory course for the Law School Admission Test, and it is paying undergraduate tuition for another employee. Its director of philanthropy is taking business writing and literature courses at company expense.

"We have 20 employees. If we lose one, we're in a tough spot. Everyone we've got is hand-picked, and we want them to stay for the rest of their careers," said Corkum. He added that the company will pay for law school for the staffer now studying for the LSAT.

Human resources professionals say that paying for employees' courses is a great motivator and retention tool for all companies, so a small business that offers tuition reimbursement will make itself more competitive when it comes to attracting and keeping good workers.

Beverly Kaye, an employee retention consultant in Sherman Oaks, Calif., said research has shown that one of the top reasons why workers stay with their companies is they're learning and growing on the job. Taking courses helps that process along.

"I'm a believer in paying for anything that in any way helps them be more effective on the job," said Kaye, co-author of the book "Love 'em or Lose 'em: Getting Good People to Stay."

Kaye suggests owners take the initiative and offer tuition reimbursement to staffers rather than waiting for workers to request it; employees will appreciate the goodwill behind the offer.

"It loses some of its panache if you wait for them to ask," Kaye said.

And don't presume to know what kind of course is right for a given staffer. Don't assume that a graphics designer, for instance, should only be taking a computer graphics course.

"What you need is to understand what challenges and motivates each individual employee," Kaye said.

Joyce Gioia-Herman, president of The Herman Group, a management consulting firm in Greensboro, N.C., doesn't have employees now, but when she did in the past, all staffers, as long as they worked at least 20 hours a week, were offered tuition reimbursement.

"We wanted it to be something that would develop them, but we gave it a very wide latitude," she said. "If somebody wanted to take a course, for instance in balancing their budget or some other real practical skill or ability they could acquire, that would help them feel better about themselves and their ability to function personally as well as professionally."

Tuition reimbursement isn't the only way to help employees learn; some businesses offer onsite learning.

Alfred Portale, owner of the upscale Gotham Bar & Grill in New York, has arranged for classes to be given at the restaurant, including English classes for workers who wanted to improve their language skills. Portale has also paid for individual language classes for some employees.

He also offers culinary education classes, including a wine program planned for later this year.

"I feel that people want to continue to learn in their positions," Portale said. "It's a very important component of the workplace _ if they feel they're learning, they're happy and stay on."

--from AP Online

AB 1825 Regulations Now In Force

The Office of Administrative Law has adopted the Fair Employment and Housing Commissions regulations for AB 1825 Sexual Harassment Supervisor Training.

What is a supervisor or supervisory employee? An employee who works in California means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend such action to the employer. The exercise of that authority is not of a merely routine or clerical nature but requires the use of independent judgment.

How do I determine if I have "50 or more" employees? Employees include full-time, part-time and temporary workers or contractors for each working day in any 20 consecutive weeks in the current calendar year or preceding calendar year. The 50 individuals do not need to work at the same location or within the state of California.

What if I do not provide this training to my supervisory employees? The Fair Employment and Housing Commission may issue an order that compliance with these regulations occur within 60 days of the order.

What if my supervisors were trained in 2007 before these regulations were final? An employer that has made a substantial good faith effort to comply with the sexual harassment supervisor training requirements before the effective date of the regulations will be deemed in compliance.

Drug-Free Workplace

A Business Week article describes how to establish a drug-free workplace at your place of business.

I always warn clients - if you wish to establish a random drug-test policy - make sure to have employment counsel draft it for you. The laws simply change too frequently in this area.

Don't Get Scammed - Get your labor poster for free!

Today's Modesto Bee illustrates a popular scam, one we see every year.

You should place the updated poster in your workplace, but don't pay a dime for it.

Download it for free here.