Compliance convergence can take many forms. In an article
entitled "Pass
the ICE Test: Nine I-9 Record Keeping Tips" published in the February
6, 2012 edition of the Texas
Lawyer, author Karen-Lee Pollak explores one of these important areas of
compliance; that being immigration and employment. Federal law requires that
all employers must verify new employee's employment eligibility within three
business days of hire. US employers are generally aware of the enforcement
actions by US Immigration and Customs Enforcement (ICE) which has shifted its
focus to employers, through increased worksite investigations, fines and
penalties. Pollak provides nine points of guidance on what lessons employers
"can learn to help their companies avoid punitive fines for faulty record
keeping.
Lesson No. 1: Make people responsible.
Pollak believes that the "key to maintaining an effective I-9 program" is to
designate specific supervisors, managers and employees to be responsible" and
then provide them with continued training.
Lesson No. 2: Pick sides.
There needs to be a clear document retention policy; whatever method is
implemented the key is that if the company keeps some documents for some
employees, "it must do so for all employees."
Lesson No. 3: Mark the calendar.
There should be a calendaring or tickler system which notifies the relevant
personnel when employment verification documentation will be expiring. Ideally,
Pollak believes a four month notice should be provided before such documents
expire.
Lesson No. 4: Protect the paperwork.
Care should be taken in your company's filing system to keep current employee
documentation separate from terminated employees. Further counsel should ensure
that the company keeps all I-9 documents "in document retention schedules."
Lesson No. 5: Schedule an audit.
Pollak believes that your system should be independently tested via an audit by
an "external auditor or trained employee who is not involved in the day-to-day
I-9 process." This has two benefits; first it should turn up any deficiencies
in your program and allow you to correct them. Second, it demonstrates your
company's commitment to a robust compliance regime.
Lesson No. 6: Get ready.
Typically there is little or no notice of an ICE audit, subsequently your
company needs to be ready for any such eventuality. Pollak advises a company to
draft a policy which sets out how your company will respond if the ICE auditors
arrive. Other keys are to have your company's documentation readily accessible
and to have employee's prepared for a surprise audit through training.
Lesson No. 7: Be serious.
Pollak believes that a common mistake made by companies when they receive
advance notice of an ICE audit is to fail to take the audit seriously. She
reiterates that such an audit is very serious business and that no matter how
friendly the auditors might seem they are not friends of the company.
Lesson No. 8: Take action.
Pollak advises companies to put a process in place to handle a "no match"
letter from the Social Security Administration. These letters can be useful
tools to put an employer on notice that there is a problem with an employee's
social security number and this is an important step not to be missed.
Lesson No. 9: Take action
(II). Pollak advocates that a company should "establish self-reporting
procedures for the company to report to ICE any violations or discovered
deficiencies." This will help in any enforcement action going forward.
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Many in-house counsel have a wide variety of roles in
their employment. For counsel in a smaller company, it may include ICE
enforcement issues, as well as anti-corruption compliance and export control
enforcement. Pollak has provided some solid, concrete tips for ICE compliance
in her article. Many of the points she raised can be used in the broader
compliance convergence context as well.
This publication contains general information
only and is based on the experiences and research of the author. The author is
not, by means of this publication, rendering business, legal advice, or other
professional advice or services. This publication is not a substitute for such
legal advice or services, nor should it be used as a basis for any decision or
action that may affect your business. Before making any decision or taking any
action that may affect your business, you should consult a qualified legal
advisor. The author, his affiliates, and related entities shall not be
responsible for any loss sustained by any person or entity that relies on this
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the author. The author can be reached at tfox@tfoxlaw.com.
© Thomas R. Fox, 2012
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