Operation Wagon Train - Sacks Tierney, PA, Attorneys - Scottsdale Arizona Law Firm providing legal services in real estate, business and corporate law, construction, employment, family law, immigration and civil litigation

IMMIGRATION AND NATIONALITY LAW

February 2007

"Operation Wagon Train" a Warning for Employers

The government raid on Swift & Company serves as a valuable heads-up for employers who wish to avoid the same fate

On December 12, 2006, U.S. Immigration and Customs Enforcement (ICE) launched the largest worksite enforcement action in history, targeting illegal workers at Swift & Co. meat processing plants and arrested more than 1,250 persons in six states as part of an ongoing investigation into immigration violations and identity fraud. In “Operation Wagon Train,” ICE agents, working in conjunction with other federal agencies, executed civil search warrants at six facilities owned by Swift & Co., one of the nation’s largest beef and pork processors.

Each of the more than 1,250 individuals apprehended was detained on administrative immigration violations, and practically all had unlawfully assumed the name, date of birth and Social Security number of a U.S. citizen. Of these, more than 200 were also charged with criminal violations related to identity theft and fraud.

Verification problems. Swift & Co. was a participant in the government’s Basic Pilot Employment Verification Program, which allows employers to check names and Social Security numbers of prospective employees. This Internet-based employment eligibility program began in 1997; it is free and is available to employers in all states.

The effectiveness of the program is undermined by unreliable immigration information, such as the most recent entry of an employee to the U.S. and his or her employment-authorized status. Further, the available data does not identify an unauthorized worker using another person’s name and Social Security number. According to Secretary of Homeland Security Michael Chertoff, hundreds of Swift workers illegally assumed the identities of U.S. citizens and used stolen Social Security numbers and identity documents to get jobs.

It is not uncommon for employers to receive from the Social Security Administration a letter advising them that reported information does not contain correctly matched names and Social Security numbers. The letters caution the employer not to consider the letter to be a conclusion regarding the employee’s authorization and not to take adverse action based on the letter alone.

Historically, the government has issued sparse guidance for employers to follow in responding to a “no-match” letter. However, within a few weeks of the Swift & Co. raid, ICE prepared the draft of a rule that provides some “safe harbor” responses for employers, and implementation appears to be a high priority.

As Swift & Co. may have learned the hard way, painstaking completion of I-9 forms according to the current format is essential to surviving a Department of Homeland Security inspection. Following are some tips for managing I-9s, responding to a government request for your I-9s, preparing for a government inspection, and being prepared in the event you are the target of a future Operation Wagon Train.

Whether or not you choose to maintain e-files of the company’s I-9s, keep the I-9s in three categories: (a) current employees, (b) employees terminated within the past year, and (c) employees terminated more than one year ago but hired less than three years ago. Keep alphabetical lists of each category, including name, Social Security number, and date of hire and date of termination.

Deliver completed I-9s to the government, instead of causing government agents to come to your offices.

Conduct an internal audit to uncover compliance deficiencies and correct them with initials and a contemporaneous date to avoid “masking” errors.

Be sure to make file copies of all documents given to the Department of Homeland Security, and get a Department of Homeland Security receipt for the documentation.

As for ICE, try to cultivate a good working relationship. The agency has stated that its focus is on criminal violations of egregious proportions by employers who make violation a part of their business model. Even if you believe that your company is not on ICE’s radar screen, it is essential that you maintain a history of good-faith compliance outside of the normal civil audit procedure.

Recognize the initial steps to take in the event that outside criminal enforcement agencies become involved. Are you prepared to handle a government investigation? What would you do if you received a grand jury subpoena? What would you do if ICE agents audit your company? What if a SWAT team appears and begins arresting employees?

Draft your crisis management plans in advance. ICE is beginning to catch up with tactics long used by the IRS, SEC and other enforcement agencies, including parallel charges at the civil and criminal levels. An ICE audit of I-9s may be shadowed by criminal investigators, who may stage a raid on a criminal case. Further, ICE is making creative use of federal statues.

You should periodically assess your level of risk, what kind of business disruption could ensue, and how much criminal exposure you face if it is determined that a significant number of employees used false documents or documents belonging to another.

Identify in advance the crisis management team and key employee to be contacted in the event of a raid. Stage a drill. The more agility the company can show in coping with the crisis, the less downtime and fallout. Who are the key players in the organization and reporting lines to key decision makers, including senior management, public relations, legal representative, human relations, security and outside counsel?

Where is the emergency contact list for security to call when agents with warrant walk in?

Who will help your employees? Outside counsel and experienced criminal counsel should be available on short notice to deal with agents.

Your company is entitled to a copy of the warrant and the support documents specifying what is being searched for and what documents are taken. During the raid, management should identify the lead agent and try to find out who the agent’s direct supervisors are and what agency is controlling the raid.

Developing the right relationship with the agents is crucial. You should try to have a dialogue at the time of the raid, or immediately thereafter. If the first aftermath of the raid is notification concerning individual employees, the company should not assume it will not face exposure as an employer. Charges may be assessed both under the immigration laws and also under federal conspiracy and mail fraud statues.

If the government agents do not allow corporate managers to inventory documents or objects taken, the management should ask for the inventory list before the agents leave the property.

The company as well as its employees have legal rights during the raid. Employees include human resource managers, as well as subjects of the raid. Employees have the right not to submit to interviews; if they consent to an interview, they have the right to have counsel present. The company may wish to have a policy allowing the employees to get initial counsel on the scene.

Since there may be a significant disruption in business, not to mention media attention, the company may wish to present a consistent message internally and to the press. For example, will, the plant be shut? What assistance is available to families?

On the day of a raid, you should get as much information to the company for legal counsel to investigate.

Human resources must have assembled a crisis management team before a raid crisis occurs. For example, family members, including spouses and children, may call the company having no idea where their family member has been taken. The company will have to marshal resources necessary to address the employees’ pressing needs that directly result from the government raid.

The morning after. The major fallout occurs the next day. With legal counsel present, the company must debrief the company’s key people, to determine what people said to the agents and what the agents took and learned.

There will be messages and issues to discuss with employees, customers and the media. What assistance will the company provide to employees and family members? Arrested employees may be owed wages and benefits. Their children may need to be provided for. Counsel and the crisis management team must decide whether the company itself is the target of a criminal investigation and limit exposure.

Employers must not knowingly allow false documents to be used by employees. Take an internal inventory of the corporate insurance policies. What is covered and what notice to the carrier must be given for any legal action which may be taken against the company?

Finally, the best protection is to have followed corporate best practices in meticulously keeping I-9 records and responding to all government correspondence. Regular internal audits of I-9 and legal update of human resources and managers are key to avoiding the nightmare experienced by Swift & Co. as a target of Operation Wagon Train.

These materials are designed to provide general information prepared by professionals in regard to the subject matter covered. It is provided with the understanding that the author is not engaged in rendering legal, accounting, or other professional service. Although prepared by professionals, these materials should not be utilized as a substitute for professional service in specific situations. If legal advice or other expert assistance is required, the service of a professional should be sought.