Will Mississippi Employers Face Charges After Massive ICE Raid?
Author: David B. Weisenfeld, XpertHR Legal Editor
August 15, 2019
US Immigration and Customs Enforcement (ICE) agents carried out what's being called the largest statewide workplace enforcement action in the nation's history in arresting 680 undocumented workers at several Mississippi food processing plants last week. ICE also seized records from the companies that employed these workers.
The implications for these employees and their families are stark. But what will this massive sting mean for employers?
"I'm bewildered by the fact ICE would do a raid like this and think it's effective," said Dennis Burke, who is of counsel with Ballard Spahr's Phoenix office and a former senior advisor to the Department of Homeland Security.
Researchers at Syracuse University found that between April 2018 and March 2019, only 11 individuals and no companies were prosecuted for hiring undocumented workers. And of those individuals, only three served jail time. These 11 prosecutions compare with the following actions taken against alleged undocumented workers and those who harbored them during that same time frame, including:
- 85,727 prosecuted for illegal entry;
- 34,617 prosecuted for illegal reentry; and
- 4,733 prosecuted for illegally bringing in or harboring immigrants.
The report noted that since Congress first enacted criminal penalties for employers in 1986 under the Immigration Reform and Control Act (IRCA), few employers have ever been prosecuted under these provisions, with rarely more than 15 prosecutions annually. IRCA was created primarily to discourage employers from knowingly hiring undocumented foreign nationals.
"If the government is really focused on serving justice to employers, there are other ways to go about doing it including bringing felony charges and criminal forfeiture claims against the people running the companies," said Burke.
In June, a bill was introduced in Congress that would make the federal E-Verify program permanent. Mississippi is one of only four states requiring all private employers located within the state to use E-Verify to confirm the work eligibility of all new hires.
ICE has increased the frequency of I-9 audits in 2019, and its Mississippi raids send a message to employers that fail to verify their employees' work eligibility.
But Jorge Lopez, a shareholder with Littler's Miami office and a chair of the firm's Global Mobility & Immigration Practice Group, said, "Employers are in the middle of a mishmash of gray areas of the law and are being thrust into no-win situations." Lopez explained by noting that employers that try to do too much can be seen as discriminating, but those that do too little may have civil exposure for constructive knowledge from ICE in a future investigation.
"We need to get away from the implication that employers are intentionally hiring undocumented workers," said Lopez. "I see companies doing the exact opposite as they do not want to risk being exposed to that."