Enforcement Advisor

Your Reliable Source of Worksite Enforcement & Compliance News
Volume I, Issue 3 April 2008
In This Issue
No-Match Letters
Rising Number of State Immigration-Related Laws
What You Don't Know Can Hurt You
RCI Executives Receive Lengthy Prison Terms
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Supplemental Proposed Rule for No-Match Letters
 
The Department of Homeland Security (DHS) recently announced a "Supplemental Proposed Rulemaking" for the No-Match Rule, describing the actions employers must take when they receive a "no-match" letter from the Social Security Administration (SSA). This rulemaking addresses three issues cited in a decision of the U.S. District Court for the Northern District of California enjoining the No-Match Rule, which was previously issued in August 2007.
 
Kathleen Campbell Walker, President of the American Immigration Lawyers Association, voiced her concerns about the supplemental proposed rule. She said, "The Social Security Administration is charged with administering social security benefits, and is not structured or oriented to be an immigration enforcement tool. This misguided attempt to fit the square peg of immigration enforcement into the round hole of social security benefits is a guarantee of increased discrimination and erroneous terminations."
 

 

 Rising Number of State Immigration-Related Laws
 
Failed Congressional attempts to enact immigration reform have led to frustration at the state and local levels. With an estimated 12 to 15 million illegal aliens now living in the United States, a rising number of states have passed their own laws related to immigrants and immigration.

The latest statistics from the National Conference of State Legislatures (NCSL) show:

1) As of December 31, 2007, at least 1,562 pieces of legistation related to immigrants or immigration were introduced among the 50 state legislatures.

2) Of these, 240 became law in 46 states.

3) State legistatures have introduced almost three times more immigration-related bills in 2007 than in 2006.

This growing phenomenon is expected to continue. For more details on state immigration-related legislation, see the NCSL Immigrant Policy Project, 2007 Enacted State Legislation Related to Immigrants and Immigration.


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What You Don't Know Can Hurt You

The recent school bus crash with a van driven by an illegal alien that resulted in the death of four students in Cottonwood, Minnesota, underscores employers' need to address identity theft issues and compliance concerns. This case drew significant media coverage and a demand for information relating to the history and identities of the people involved. Initially, the driver of the van claimed to be from Puerto Rico with a local residence and employment. Local, state and federal resources joined forces and quickly sought documentation from her employers and executed a search warrant at the driver's residence that disclosed she was a citizen of Guatemala and illegally present in the United States. It was also determined that the driver was previously employed at the Jenny-O processing plant in Willmar, Minnesota, and a cabinet shop.

According to public statements by representatives of these two employers, their records "were in order" and the employment verification process was defeated by the apparent identity fraud. Left unanswered is what additional investigation is being pursued by authorities. The employers could be sanctioned if the investigation discloses serious violations of the verification process. Therefore, the employers need to determine similar cases of identity fraud and the extent of any similar violations by other individuals.

An event of this nature can quickly cascade into inquiries that the employer might not be prepared to meet. The lesson then is to be prepared to weather the review process and, if challenged, have sufficient information to counter public criticism or official inquiry. This preparation should include:

1. Documented training procedures related to the verification of identity and work eligibility.

 
2. Policies and procedures that clearly define the processes that relate to verification issues such as Social Security no-match letters, internal complaints, use of false documents, suspense files, reverification, official requests for documentation and media inquiries.
 
3. Training related to the identification of false documentation, interviewing techniques and interaction with investigatory agencies.
 
4. Training related to discrimination in the hiring process including document abuse provisions enforced by the Office of Special Counsel.
 
5. Internal audits that recur with written assessments including trends, patterns and vulnerabilities. The assessments may include turnover rates and types of sub contractors employed (i.e. maintenance, food service delivery, grounds keeping, cleaning and construction, which have documented histories of employing illegal aliens). If transportation and/or housing are provided to employees, how is that accomplished, documented and paid for? Does the company have internal recruitment incentive programs and, if so, how are they monitored? Is there a secondary review process in the hiring procedures? Are business contracts or operations being undertaken in states that mandate verification procedures such as E-Verify? Are rejected applications maintained in a suspense file and purged on a routine schedule?
 
An event that is unanticipated by an employer and not within the scope of employment (such as the Cottonwood case) may nonetheless cause an enforcement "spotlight" to be directed at the employer. It is best to anticipate these eventualities and be prepared to withstand scrutiny by governmental agencies and the public.
 
RCI Executives Receive Lengthy Prison Terms for Hiring Illegal Aliens
 
Richard M. Rosenbaum, Edward Scott Cunningham, and Christina A. Flocken of Rosenbaum-Cunningham International (RCI) were sentenced in U.S. District Court in Grand Rapids, Michigan, on March 3, 2008 for operating a nationwide janitorial service that was staffed almost exclusively with illegal aliens. Rosenbaum, the former President of RCI, pleaded guilty in October 2007 to charges of conspiring to defraud the U.S. and harboring illegal aliens. Cunningham, the former Vice President of RCI, and Flocken, the former Controller of RCI, pleaded guilty the following month to the same charges. Judge Paul Maloney sentenced Rosenbaum to 120 months in prison, Cunningham to 51 months in prison, and Flocken to 30 months in prison. In addition, the judge held each of the three jointly and severally liable for evaded federal taxes and ordered them to pay restitution to the U.S. Treasury. The judge ordered Rosenbaum to pay $16,908,645.18, Cunningham to pay $16,294,166.18, and Flocken to pay $15,675,398.18. In January, Judge Maloney ordered the three to forfeit to the U.S. numerous bank accounts, life insurance policies, and currency totaling more than $3 million that was derived from their illegal activity.
 
The U.S. Immigration & Customs Enforcement (ICE) initiated the national worksite enforcement action that effectively shut down what then remained of RCI's operation. RCI was a cleaning and grounds-maintenance service company that contracted with theme-restaurant chains and hospitality venues throughout the U.S., including the House of Blues, Planet Hollywood, Hard Rock Cafe, Dave and Busters, Yardhouse, ESPN Zone, and China Grill.