The news about Grand American Hotel paying $1.95 million to settle ICE fines because some of its managers created employment agencies to rehire unauthorized workers is a reminder to employers that you can’t do indirectly what you cant do directly. Apparently, a previous ICE audit resulted in the termination of numerous unauthorized workers from the hotel, but some hotel managers thought they could beat the system by hiring these same workers through some type of leasing agency. It didn’t work.
The issue isn’t uncommon. During an ICE audit, an employer may receive a notice stating certain employees are not authorized to work. Sometimes the employer may have a properly completed I-9, but the employee has provided fraudulent or suspect documents. These employees may be terminated as a result. When an employer loses a large percentage of its workforce, it often looks for ways to keep the business running as it had before.
Ive been asked, Can we have these terminated employees go work for a temp agency and come back to work for us? The answer is, Absolutely not! The employer already has actual knowledge that these individuals are unauthorized.
The Grand America Hotel news also is a reminder to employers that the immigration-related compliance of its contingent workforce (e.g., independent contractors) in general is important. Employers should no longer feel any comfort with the fact that the contingent workers are not technically W-2 employees, especially if there are indications (e.g., constructive knowledge) that such individuals are unauthorized.
What should employers do?
- Have concrete contractual provisions with its independent contractors and leasing agencies relating to immigration compliance; and
- Consider auditing its contractors to ensure they are doing what they are legally required to do to ensure their employees are authorized to work.