Enforcement Advisor: Worksite Enforcement & Compliance News

Use of a Ruse
When it Comes to Worksite Enforcement, Things Aren't Always As They Seem

In a criminal worksite enforcement action against the employer, the government bears the burden to prove its case beyond a reasonable doubt. Because worksite investigations are time-consuming and resource-intensive, they are not pursued unless there is a very high probability that the government will ultimately prevail. Gathering information that will support criminal charges is often daunting. In this era of "CSI" TV programming and the multitude of cop-and-lawyer shows, the public expects that the evidence presented will be powerful and graphic, with charts, graphs and compelling testimony. So how is this accomplished? Hidden cameras and audiotapes usually come into play.

A worksite enforcement case is not opened unless there is probative evidence that a violation has occurred. If the "lead" is not verified to some extent, the case and the investigative techniques may not withstand a defense challenge of entrapment or a fishing expedition for production of documents. After the initial information is verified, an operational plan will be discussed, reviewed and written with a supervisor's concurrence.

The plan can be rather mundane or complicated, depending on the complexity of the case. For example, if the goal of an investigation is to arrest one individual in an apartment, the investigating agent may knock on the door and announce a "delivery" of a package. This is a common ruse used by law enforcement agents and has been upheld by the courts. Once the suspect opens the door, the agent can confirm identity and execute an arrest warrant. This is a simple scenario that is replicated by enforcement agencies every day. After all, who doesn't want to know what the delivery person is bringing? Remember the saying, "Curiosity killed the cat"?

The investigative team might also seek to determine if the "target" will make statements against interest. Imagine, for example, an employee asking to speak to the company official who is responsible for hiring decisions. The employee states that he received a "letter from the government" that stated his social security number is not valid. The employee then blurts out, " I know the number isn't valid but I overstayed my student visa and I needed to work so I just made the number up." The human resources person should be on alert immediately.

First, the employee has now admitted that he is not authorized for employment in the United States and has potentially falsified the I-9 form and perhaps other employment documentation. Second, the employer is now on notice of the employee's unlawful status and the employer is at risk for administrative and criminal charges by the government if the employment continues. Third, the employer does not know whether this employee is distraught and merely searching for personal answers to his dilemma or is in fact acting as a government agent and his "statements" have been coached and rehearsed by his control agent with the expressed purpose of determining how the employer will respond to the statement. Because individual perceptions vary, if this scenario is part of an official investigation, it is likely that the conversation will be recorded by the "employee". The resultant tape will be logged into evidence with a chain of custody procedure and will become part of the government's case to be used when appropriate.

So what should the law-abiding employer do under these circumstances? First, if an employee admits that he has engaged in some type of criminal activity, respond quickly, obtain legal advice and document the incident adequately. Second, an internal review of the employee's records is appropriate and a broad audit is recommended to determine what other vulnerabilities are apparent. Third, an analysis of historical interactions with enforcement agencies is appropriate. The extent of prior interaction with enforcement agencies may be an indicator to current events. Fourth, never commit to any course of action without the advice of counsel. It is always a good policy to act and speak as if your actions and words will some day be played back to you.

The government's use of a ruse in worksite enforcement cases is not left unchallenged. Indeed, when Immigration and Customs Enforcement (ICE) agents posed as representatives of the Occupational Safety and Health Administration (OSHA), complaints forwarded by union officials and special interest groups prevailed. The reasoning was that workers (legal and illegal) would be reluctant to report safety violations if they believed that enforcement agents were posing as OSHA representatives. This would create a chilling effect that could put the safety of all workers at risk. Eventually, ICE implemented a policy prohibiting agents from engaging in this particular type of ruse. However, the tactical use of other forms of a ruse to gather information continues to be employed with frequency by the government. How the employer responds to such attempts may define whether an investigation has merit or will be closed for lack of supportable information.