1200 Illegal Workers Fired in Minnesota

In the largest immigration enforcement action under the Obama Administration, 1,200 illegal aliens working as janitors in Minnesota were fired last month having presented the employer with suspect I-9 employment documents.  The company, San Francisco-based ABM, that contracts to clean office buildings, carried out an internal audit prompted by Immigration and Customs Enforcement (ICE).

The 1,200 workers fired is almost as many employees as the number arrested in the six 2006 Swift raids and about three times as many as were arrested in Postville in 2008. The main difference is these janitors were fired, not arrested and deported. Workers who continue working at the company said about 80 percent of the workforce was fired.

The process began this summer with ABM letters to workers saying ICE had found problems with their paperwork. The employees were provided a reasonable timey to fix the problems, but time ran out in October when the firings started.

Federal law prescribes specific procedures by which employers conduct employment verification activities.

ABM's letter to employees said, "ICE has informed ABM that the documentation you previously provided to confirm your employment authorization in the United States does not satisfy the I-9 Form employment eligibility verification requirements of the Immigration and Nationality Act." 

The letter directed employees to bring in additional documents evidencing employment eligibility or work authorization. The company extended the deadline several times to give workers more time to provide the proper paperwork.

The unemployment rate in Minnesota in September was 7.3%. Of the 1,200 job openings created by the firings, apparently all the jobs have been filled.

ICE “desktop audits” are part of the Obama worksite enforcement strategy targeting employers. Shifting from the Bush worksite enforcement policy of conducting large worksite enforcement actions, the Obama Administration conducts company audits of I-9 documents. Unlike the Bush-era enforcement actions, no action was taken against the fired workers.

ABM will likely be prosecuted.

DHS/ICE enforcement of I-9 and employer sanctions laws now targets employers through on-site investigations and administrative or "desktop" audits. 

Employer failure to verify employment eligibility and properly complete and retain I-9 Forms subjects the company to stiff criminal and civil liabilities, including imprisonment, asset forfeiture, and treble damages in RICO (Racketeer Influenced and Corrupt Organization) lawsuits by competitors. Executives, officers, managers, supervisors and key employees, as well as accountants are personally liable for civil and criminal penalties for I-9 related errors and unlawful employment eligibility verification (EEV) practices.

I-9 compliance (and E-verify for registered employers, now including FAR federal contractors) require that employers verify all workers’ employment eligibility, or work authorization. Persons not authorized for employment, whether documented foreign nationals (or "illegal immigrants") generally do not have work authorization. The I-9 laws and the employment eligibility verification process restrict employment of illegal or undocumented immigrants and employment of persons who are not "employment authorized".

Employer liability extends to circumstantial evidence and “constructive knowledge”.
  It is unlawful to knowingly hire or continue to employ unauthorized workers. This I-9 process mandates accurate and timely completion of the Form I-9 by all U.S. employers and their employees.

"Knowingly hire" includes "constructive knowledge". The requisite employer's knowledge may be constructive knowledge when it may be fairly inferred through notice of certain facts which through exercise of reasonable care would lead a person to know about; or the employer deliberately fails to investigate such facts.

Employer constructive knowledge extends to its subcontractors' and independent contractors' I-9 compliance.

Goulder Immigration Law Firm assists employers with Form I-9 consulting, including I-9 and employer sanctions compliance training, developing a company I-9 and employer sanctions compliance manual, and employment eligibility compliance auditing services.  Written I-9 compliance policies and a Form I-9 and employer sanctions law internal audit will help protect employers from government fines and criminal penalties and help ensure that all I-9 Forms comply with I-9 and employer sanctions laws.