If your dealership is located near the Mexican border (and even if it's not), you need to pay close attention to the stiffening crackdown on illegal workers. The U.S. Department of Homeland Security and its Immigration & Customs Enforcement (ICE) investigative branch, now engaged in heavy-duty raids, have begun arresting supervisors and managers for harboring illegal employees and even illegal subcontractors. Potential penalties for non-compliance can include 10 years in jail and a $250,000 fine, notes immigration attorney David Whitlock.
"The whole world just turned upside down in the last month," says Mr. Whitlock, a partner with labor and employment law firm Fisher & Phillips, LLP, and the chief information officer of Prevention Point, its human resources consulting affiliate.
Since April, a number of clients from assorted industries have told Mr. Whitlock that ICE wants to inspect their I-9 forms. In May, immigration agents raided Kentucky-based builder Fischer Homes, Inc. and arrested four construction supervisors on harboring and concealing charges related to illegal subcontractors; 76 illegal alien workers at its construction sites were also arrested. The homebuilder had failed to take action after an immigration agent, accompanied by local law enforcement, interviewed subcontractors at four of its job sites in January, says Mr. Whitlock.
"The subcontractors are not even their employees so it's a little scary," says Mr. Whitlock. The bottom line: "If you learn someone is illegal, you need to get rid of them."
Auto dealers can breathe a little easy that they're not among the top five industries being targeted. These industries, which employ a very high number of illegal immigrants, include construction, agriculture, food processing, textiles and hospitality, says Mr. Whitlock. Initial efforts are also being aimed at areas with large Hispanic populations - South Florida, Texas, Southern California, and other parts of the Southwest. But don't breathe too easy. Everyone is now at higher risk and sooner or later enforcement officials will get around to the rest of them, he says. Unofficial business can trigger unplanned investigations at dealerships too.
"Realize too that immigration agents buy cars," says Mr. Whitlock. If an agent has contact with a Hispanic worker - perhaps a porter - who doesn't speak English, that puts your dealership on their radar and they might want to come back to inspect the legal status of your employees, he says.
So what steps should auto dealers be taking now to reduce potential risks? Mr. Whitlock shared the following suggestions with DBB:
First, go back several years to see which of your employees have received Social Security mismatch letters and give them notice to go down to the Social Security office and fix this problem. While you should document that you've sent a letter to these employees, he doesn't think it's necessary to have them sign off upon receipt or to send letters by certified mail. In fact, you may want to hand deliver them so they don't panic, he says. "Soft-pedal this so you don't lose a lot of back-end employees," he says. For more guidance, visit www.dealers edge.com and click on "Free Stuff."
"Also get your I-9 house in order," advises Mr. Whitlock. A missing or defective form can result in a $1,100 paperwork violation, as well as a $2,200 penalty for "knowing employment" (retaining an employee you know is not allowed to work). He recommends keeping Forms I-9 in a separate binder since you only get three days advance notice on an I-9 audit; pulling them from individual personnel files is tedious and more error-prone. "Politely insist on these three days," he says. Hiring an outside consultant to audit your I-9 documents can also help show that you've taken this task seriously.
If you really want to be proactive, consider using the Social Security Administration's online verification system, says Mr. Whitlock (www.ssa.gov/employer/ssnv.htm). He toldus such verification is included in all enforcement proposals in Congress. He suggests doing it going forward for new hires; you can submit 10 individuals' Social Security numbers and get an almost-immediate response (most illegal aliens have an invalid number, he says). If you can demonstrate you've checked out Social Security numbers, the odds of having a criminal investigation go way down, he says.
Also require contractors to certify in writing that they're in compliance with employment law, including I-9 requirements, says Mr. Whitlock. This includes any cleaning company, temporary agency, landscaping business, advertising services firm, car wash business, or other company that provides workers to perform duties at your dealership.
What about the risk of potential discrimination lawsuits? Letting someone go because they're not authorized to work is not discrimination unless you're only checking one class or race, says Mr. Whitlock.
To avoid any issues here, he says to make sure you apply your employment policies consistently and uniformly across the board.
Mr. Whitlock is based in Fisher & Phillips' Atlanta office. Call him at 404-240-4210 or e-mail email@example.com.