GOVERNMENT AFFAIRS / LEGAL
ICE TURNS IMMIGRATION FOCUS ON HOUSTON RESTAURANT CHAIN
David B. Jordan, Fulbright & Jaworski L.L.P.
According to reports in the media, the United States Immigration and Customs Enforcement (“ICE”) arm of the Department of Homeland Security raided a food production facility for Shipley’s Do-Nuts, a well-known Houston restaurant chain. The raid, which occurred early this morning, resulted in arrests of approximately thirty employees for immigration-related charges. The raid is one of a number of worksite enforcement operations that ICE has recently conducted throughout the country. This local operation signals that ICE is now adding smaller, local employers to its list of targets for immigration enforcement operations. As a result, restaurant and hospitality operations should continue to be vigilant in complying with immigration-related laws, and contact counsel with any concerns or questions about compliance. Among the numerous immigration issues facing restaurant operators, the following are particularly important in avoiding civil and criminal liability:
Compliance with I-9 Requirements. Restaurant operators should consider auditing all of their I-9s for every employee. For each employee, operators should verify that each I-9 is completed properly, signed and dated by the employee, and documents the work authorization and identity documents provided by the employee prior to the start of employment. I-9s can be difficult to understand and complete. If you have any questions or concerns about how to properly complete the I-9, you should contact an attorney to assist you in auditing your I-9s and training your managers on completing I-9s.
If an I-9 is not located, or is incomplete, the operator should complete the I-9 immediately, by asking for appropriate documentation from the employee and properly noting the documentation on the I-9. If an employee cannot provide appropriate work authorization and identity documentation, or admits he/she does not have appropriate documentation, an operator must terminate the employee. If an operator has some other reasonable belief that the documentation may be false, or has some other reason to believe that the employee is not authorized to work in the United States, the operator should investigate the matter immediately, and, after discussing with counsel, if circumstances warrant, terminate the employee.
Social Security No-Match Letters. The United States Social Security Administration (“SSA”) recently promulgated regulations advising employers on how to handle the receipt of Social Security no-match letters about employees. Due to litigation, the regulations are not currently in force. However, restaurant operators still should be very cautious on how to handle no-match letters.
Instead of letting no-match letters pile up, upon receipt, operators should immediately check their own payroll records, and other documentation, including copies of documentation attached to the I-9, to determine the source of the SSA discrepancy. If that does not resolve the issue, the operator should ask the employee to bring their Social Security card to work, so that the operator can determine the source of the discrepancy. If that does not identify the discrepancy, the operator should ask the employee to contact the SSA to address the no-match discrepancy. If at any time during this process an employee admits he/she is not authorized to work in the United States, or has provided you a false document, you should investigate the matter immediately, and, after discussing with counsel, if circumstances warrant, terminate the employee.
When ICE Shows Up. If ICE ever shows up at your facility, with a subpoena, agents will typically begin interviewing employees and managers, and reviewing company documents. Immediately, your first responsibility should be to get the business card and contact information for the person directing the investigation, and contact counsel. Counsel should then be able to assist you in providing the most appropriate cooperation to officials at your worksite.
David B. Jordan an attorney at Fulbright & Jaworski L.L.P.. and is Board Certified in Labor & Employment law by the Texas Board of Legal Specialization. You can contact him at djordan@fulbright.com or at (713)651-5592. |
