Will the Chickens Come Home to Roost for Managers of Raided Chicken Plants?
Many have lashed out at the Trump administration’s recent immigration raids in Mississippi that resulted in the arrest of nearly 700 workers at five chicken processing plants in Mississippi. Immigration and Customs Enforcement (“ICE”) has again been roundly criticized for its treatment of immigrants. Some have complained that if the Trump administration wants to discourage illegal immigration, why not go after the companies that hire undocumented workers instead?
While fewer than a dozen employers were criminally prosecuted last year for hiring illegal aliens, given the pressure on the administration, I think it would be a mistake for the employers in Mississippi to assume that they will escape criminal prosecution and employers everywhere should be on their guard. While no one may have been indicted yet, I think it is safe to predict that the current administration realizes that it needs to show that it will go after employers as well as undocumented workers, if it wishes to pacify its critics.
To be clear, no employer is going to be prosecuted because they unknowingly hired someone who was not eligible to work in the United States when that person presented a false or stolen Social Security card. In fact, if an applicant for employment is able to present approved documents that establish employment authorization and identity that appear to be valid on their face, the employer risks a claim of discrimination if it demands further proof from that employee.
However, any employer or a manager may be criminally prosecuted if there is evidence that he has knowledge of or acted in reckless disregard for an employee’s illegal status. Given the number of employees involved in Mississippi, it may take only the testimony of a few to inculpate the person who hired them by suggesting that they knew that the employee did not have valid documents. Evidence, for example, that an employee had applied multiple times using different identities each time could also be used to show that the employer had knowledge or constructive knowledge that they were not permitted to work. Moreover, a number of the employees who were detained in Mississippi had been wearing electronic monitoring bracelets which are frequently placed on immigrants without work permits.
So what can an employer do to protect itself? First, and foremost, make sure that you have valid I-9s for all of your employees. If you have any doubt, it is not a bad idea to have an external audit by an independent party done. Speaking of I-9s, it is also important to keep track of which employees need to be reverified. In some states, you may be required by state law to use E-Verify, but even if you are not, you may seriously want to consider enrolling the E-Verify program if you are in an industry that relies heavily on workers who may not have been born in the United States. Finally, every company should clearly define which persons are responsible for immigration compliance and develop clear descriptions of those persons’ roles. Front line supervisors should not be allowed to hire anyone until the applicant has been cleared by the persons responsible for immigration compliance.
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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.