ICE Agents have been active recently in the Prince William area and other parts of the VA/DC/MD metropolitan area, investigating businesses (especially small and medium companies) to determine compliance with properly completing and retaining I-9 forms. Employers in industries involving construction, restaurants, landscaping, and janitorial/cleaning services are frequently (but by no means the only) targets of ICE investigations.
U.S. Immigration and
Customs Enforcement (ICE) (an agency within the Department of Homeland
Security) has significantly increased its efforts to reduce unlawful
immigration employment practices under the Immigration Reform and Control Act
(IRCA). Employers are legally required to verify the identity of the person
they hire and to confirm that they are eligible to work in the United States. The law further requires that employers document
this process by completing a Form I-9 for each person they hire.
ICE has focused
enforcement efforts on employers who hire an illegal workforce. They follow up
on tips provided by the public and conduct random and unannounced audits of
employer records to determine if the company has complied with its legal
obligations. They do not need probable
cause to investigate your business nor do they need to have a tip.
I-9 Forms and ICE’s Notice of Inspection
The mandatory I-9 forms
must be completed every time you make a new hire. The form must be retained for three years
after the date of hire, or one year after the date employment ends, whichever
is later. If ICE has been given a tip or the business has been selected for an
audit, ICE will present you with a Notice of Inspection.
What to Expect from an ICE Inspection
The notice of inspection
usually requests the following records from the company:
No-match and mismatch letters
Upon notice, you have
three business days to provide the investigating officers with the requested
Civil and Criminal Penalties
Failure of employers to
comply with IRCA can result in substantial civil fines and ultimately, possible
criminal prosecution if you are found to have knowingly violated the law.
What To Do If ICE Agents Present You With A Notice of Inspection Regarding Your I-9s
Do not provide records immediately or allow an
immediate inspection of records as you have up to three days to respond.
Call your trusted
employment lawyer in order to advise you on the best course of
action and to timely respond with the proper documents presented in the best
Ensuring Compliance Before ICE Investigates
If you have not yet been
the subject of an investigation, you can take steps to protect your
business. Employers should conduct
confidential internal audits of your I-9 forms with the help of your employment
lawyer. This process can help you
correct any potential problems before an inspection and avoid possible fines. It is also beneficial to have knowledgeable
employment counsel conduct periodic training of your personnel assigned to
handle your I-9s.
Contact a Trusted Employment Law Attorney
Kristina Keech Spitler, Esq., with Vanderpool, Frostick & Nishanian is ready to help your business respond to an ICE inspection, provide a confidential internal Form I-9 audit, and/or help train your personnel to properly complete and retain I-9 forms.
Kristina Keech Spitler is a Shareholder and Head of the Employment Law Practice of Vanderpool, Frostick & Nishanian, PC. With over thirty years of experience, Kris has been recognized as “Legal Elite” in Employment Law by Virginia Business Magazine, as well as a “Leader in the Law” and an “Influential Women of Law” by Virginia Lawyers Weekly. You can reach Kris at (703)369-4738 or email@example.com.
** The information contained in this website is provided for informational purposes only and should not be construed as legal advice.
Pictured above: VF&N land use and zoning attorney, Karen Cohen, with legendary engineer, Sid Dewberry, PE, LS, Chairman Emeritus, Dewberry, Kat Grimsley, Director of the MS Real Estate Development program at George Mason University, and the team of book contributors, celebrating the publication of the third in a series of land development books by industry-leading design firm, Dewberry.
the Built Environment: From Site Acquisition to Project Completion is a textbook that explores the entire development process from
an applied perspective to provide architects, civil engineers, and other team
members with an understanding of the context in which real estate development
occurs. Karen, fellow alumnae of the Mason Masters of Real Estate
Development (MRED) program, and others, were contributors and advisors.
The Maryland General Assembly passed Senate Bill 853, which took effect on October 1, 2018, that added the following text to Section 3-507.2 of the Maryland Code, Labor & Employment:
In an action brought under subsection (a) of this section, a general contractor on a project for construction services is jointly and severally liable for a violation of this subtitle that is committed by a subcontractor, regardless of whether the subcontractor is in a direct contractual relationship with the general contractor.
If a court finds that a sub-contractor failed, under certain circumstances, to properly pay an employee, the general contractor may be liable for damages, counsel fees, and other costs.
The Act now permits an employee of a sub-contractor, who was not paid in accordance with applicable Maryland wage/hour laws, the right of action against the general contractor even though there is no direct contractual relationship between the general contractor and the subcontractor’s employee.
Risk mitigation strategies for Owners, General Contractors and Senior Sub-Contractors involved in Maryland based construction projects:
Inspection of Payroll Records – Include in your contracts a provision that requires subcontractors to provide certified and detailed payroll information with every pay application.
Audit Clauses – Include provisions in your contracts that permits you to conduct “spot audits” or “interviews” with sub-contractor employees.
Certifications – Require sub-contractors to certify or declare in their payment applications that they have checked/audited the payrolls of every sub-contractor at every tier to confirm the payment of employees.
Insurance/Bonding – Require subcontractors to furnish payment and/or performance bonds or wage-hour insurance. To cover the entire statutory period for wage claims, these bonds or insurance will have to be maintained for three years after final payment of wages on the project.
Broad Indemnity and Personal Guaranty Provisions – In addition to any existing general indemnification clause, include a specific clause or language addressing claims arising out of any violations of the Act. Require that the principals of all sub-contractors personally guaranty compliance with the Act and payment of employees.
Flow Down of Terms and Conditions – Require that all clauses in the sub-contract relating to the Act and subcontractor’s obligations thereunder flow down to each subcontract tier.
Obligation to Defend – In addition to indemnification obligations there should also be provisions all sub-contracts requiring the sub-contractor to defend the general/direct contractor for violations of the Act.
Hiring Decisions – Include provisions giving the general contractor the power to approve or reject the hiring of sub-subcontractors of all tiers.
Site Security – Implement site security to confirm identification of all employees on the job site so no previously unidentified individuals can later appear seemingly out of nowhere and claim that an employer/subcontractor did not pay them.
Creation of Fiduciary Duty – “In-Trust” Requirements – Include a provision in all private works sub-contracts requiring sub-contractors to hold all payments received “in trust” for the benefit of the direct contractor and the benefit of the subcontractor’s employees, lower-tiered subcontractor employees, for the purpose of meeting the wage and benefit obligations owed not only to the subcontractor’s employees but the employees of any lower-tiered subcontractors.
Increased Retention – Increase retention percentages, withholding, and back-charges depending on the sub-contractor and size of job.
Identification of General Contractor – expressly note the identity of the general contractor in each contract. Project owners may want to include disclaimers that they are “not” acting as the general contractor.
Three Years Statute of Limitations – A general contractor should retain pertinent records from all subcontractors for at least that long following project completion and should make sure that all indemnification obligations survive the completion of the project for that length of time as well.
Please contact us at 703-369-4738 with any questions.
*The information contained in this website is provided for informational purposes only and should not be construed as legal advice. The material on this website may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site. Do not act or refrain from acting upon this information without seeking professional legal counsel.