- An employer recently attempted to argue that it had made a good-faith effort to comply with the Immigration and Nationality Act (INA) by hiring a well-credentialed HR director. The 9th U.S. Circuit Court of Appeals, however, was not persuaded and upheld a fine imposed on the employer for the HR director's failures (DLS Precision Fab LLC v. U.S. Immigration and Customs Enforcement, No. 14-71980 (9th Cir., Aug. 7, 2017)).
- The employer, DLS Precision Fab, was appealing a $305,050 penalty for more than 500 immigration law violations. They included Form I-9 shortcomings and knowingly employing 15 individuals ineligible to work in the U.S.
- DLS allegedly had no idea it was violating the law and in trouble with Immigration and Customs Enforcement (ICE). “Unbeknownst to the company, [the HR director] shirked his responsibility to ensure the company’s compliance with the INA to the point, as later described by DLS, ‘of literally stuffing the government’s correspondence in a drawer and never responding.’”
The appeals court offered little sympathy for the employer and was not at all persuaded by its argument that hiring a qualified HR director should absolve it of its violations. “DLS is not the first employer to hire an employee with the expectation that he or she will comply with the law only to be disappointed, nor is it likely to be the last,” the court said.
Employers are also responsible for supervising their employees, the court said; “The HR director was acting as DLS’s agent, and his failure to perform his responsibility may properly be imputed to DLS.”
This scolding seems to recommend that employers refrain from putting all compliance responsibilities into the hands of one individual, with no checks.
Employers also should consider training for all employees — not just HR — on the types of incidents or correspondence that require them to alert higher-ups. It’s particularly important that front-facing employees know how to respond if government officials come calling, especially at a time when ICE workplace visits may increase.