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Civil and criminal prosecutions against companies for employing illegal workers are on the rise. Just last month the president and two managers of a New Bedford, Mass., manufacturing plant were indicted on charges that they conspired to both harbor illegal aliens and continue to employ those workers with knowledge of their illegal status. Raids of the company’s offices in March of this year netted 361 illegal workers. In July, a seventh defendant in the government’s probe of illegal hiring practices at IFCO Systems pled guilty to aiding and abetting the transportation and harboring of illegal workers. Nearly 1,200 illegal workers were detained in raids of over 40 IFCO plants last April. And who can forget the $11 million Wal-Mart paid to settle claims it hired illegal immigrants after 245 such immigrants were arrested during raids of its stores. Sweeping new regulations announced earlier this month by the Department of Homeland Security (DHS) may make it easier for the government to prove such civil and criminal violations. These new measures amend Immigration and Customs Enforcement (ICE) regulations to enlarge the circumstances under which an employer may be found to have had constructive knowledge that it was employing an alien not authorized to work in the United States. The regulations define constructive knowledge as “knowledge that can be inferred through facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.” For example, 8 U.C.S. Section 1324a makes it unlawful to continue to employ an illegal worker knowing that he is unauthorized to work and provides for both civil and criminal sanctions. This statute imposes liability where an employer has constructive knowledge of a worker’s illegal status. These new regulations impute such constructive knowledge onto an employer when it receives an “employer correction request letter” or “no-match” letter from the Social Security Administration (SSA) or a “notice of suspect documents” letter from the ICE and fails to take reasonable steps in response. The SSA sends no-match letters to inform employers when employee names and Social Security numbers do not match. ICE sends its letters when it is unable to verify the documentation provided by an employee completing the employment eligibility verification forms. If an employer who receives such notices takes reasonable steps to resolve the discrepancies, however, DHS would not use the letters as evidence of constructive knowledge. These “safe harbor” provisions outline the steps an employer should take after receiving written notices in order to avoid liability. For example, after receiving a no-match letter, an employer should, within 30 days, check its own records to determine if the discrepancy is due to a clerical error. If it is, the employer must correct the information and confirm with the agency that the corrected information matches its records. If the discrepancy is not due to a clerical error, the employer must request confirmation from the employee that the information provided on the employment records is correct. If the records are not correct, the employer must provide corrected information to the agency as described above. If the employee indicates that the records are correct, the employer must request that the worker resolve the discrepancy directly with the agency. The discrepancy must be resolved by the employee within 90 days of receipt of a written notice. If within 90 days of receiving written notice the employer is unable to resolve the discrepancy, the regulations provide for a verification procedure that would verify � or fail to verify � an employee’s identity and work authorization. If the employee is verified through this procedure, even if it is later determined that the worker was in fact illegal, the employer will not be considered to have constructive knowledge of that fact based on receipt of a no-match letter. If the verification procedure fails to verify an employee’s identity and work authorization, an employer must take steps to terminate the worker or risk that DHS may find it had constructive knowledge of the worker’s illegal status. The business community has sharply criticized these new regulations. The new regulations came just months after Congress vetoed a comprehensive immigration bill that would have given legal status to millions of illegal workers. Absent such legislation, these new regulations could affect over 8 million existing workers. Especially hard hit will be the agriculture, construction, restaurant and hotel industries, but no industry will be immune from potential exposure. To make matters worse, these new regulations come at the busiest time for the agriculture industry and many worry about the devastating effect they could have if employers are forced to fire their illegal workers. Supporters say the crackdown will open up jobs to currently unemployed U.S.-born workers. They reject opponent’s concerns over a decrease in work force because a pool of legal workers is available to fill the jobs left by illegal workers. Employers must be keenly aware of this trend in workplace enforcement and take steps to avoid becoming targets. They must ensure that their human resource professionals � especially in industries where many illegal immigrants work � are trained in immigration issues and up to date on new regulations, including the steps to take upon receipt of written notification from SSA or ICE to avoid being accused of any wrongdoing. DAVID LAIGAIE , a partner at Dilworth Paxson, heads the corporate investigations and white collar group. His areas of practice include health care fraud, securities fraud, tax fraud, export violations, pharmaceutical marketing fraud, municipal corruption, defense procurement fraud and public finance fraud. He regularly conducts internal corporate investigations. He can be reached at 215-575-7168 or [email protected] . MARIANA ROSSMAN, a member of Dilworth Paxson’s corporate investigations and white collar group, is a former assistant defender for the Defender Association of Philadelphia. She focuses her practice in corporate investigations, white collar defense and complex civil litigation. She can bereached at 215-575-7244 or [email protected] .

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