The Liability of Non-compliance
Employers have been burdened with the responsibility of verifying each employee’s “legal right to work” since the Immigration Reform and Control Act (IRCA) was passed in 1986. It wasn’t until recently, though, that employers have seen a large-scale increase in Federal and State initiatives to enforce IRCA and the mandates it places on employers. In 2005 the Department of Homeland Security (DHS) began the “Secure Border Initiative” focusing on interior enforcement of our immigration laws. As a result of this, worksite enforcement has become a priority. To achieve this goal, the DHS and U.S. Immigration and Customs Enforcement (ICE) have significantly and swiftly stepped up the number of employer I-9 audits, immigration raids and, subsequently, the number and severity of penalties associated with non-compliance.
Between last year and this year, the number of employers arrested for hiring illegal immigrants has more than doubled. The government is no longer content with mere administrative fines for IRCA-related violations. Along with these fines, ICE is pursuing criminal charges against business owners, managers and supervisors. Last fiscal year, the department convicted 127 business people of criminal acts—almost three times as many convictions as the year prior!
The investigation of just one workplace last year resulted in settlement and forfeiture of $15 million. More recently, in May of 2008, the President of one business under investigation was sentenced to 9 months in prison, while the operations manager was sentenced to 15 months for hiring non-authorized workers. Both were fined $750,000.
Though these penalties were levied as a result of violating laws against hiring illegal aliens, many employers also face penalties for simple paperwork violations, even if the employee is a U.S. citizen! Such violations result in fines ranging from $110 to $1,100 per missing piece of information per individual I-9 Form. Clearly even these administrative fines can amount to a substantial liability for companies of any size.
As with any law, simply pleading ignorance or being unaware and uninformed of the violations is not a valid excuse. Employers must be proactive in ensuring compliance with Federal and State legal requirements. Establishing a good-faith defense by properly completing and maintaining I-9 forms for all employees is often an employer’s first line of defense. Just as a manufacturer utilizes safety equipment to minimize workplace risks, so too must employers utilize the latest Human Resources tools and techniques to reduce the likelihood of non-compliance penalties.