There was a time when employers didn't risk much in hiring undocumented immigrants. The worst that could happen was simply losing a worker through deportation. More recently, the workplace has become an enforcement site for immigration law, with employers being required to confirm the legal status of every worker they hire upon risk of civil penalties and even criminal prosecution for hiring workers who do not have appropriate legal status.
The federal agency responsible for immigration worksite enforcement is Immigration Customs and Enforcement (ICE). There have been a long string of ICE enforcement actions against ordinary businesses (restaurants, landscapers, construction companies, food processing plants, small manufacturers, and so forth) for “harboring” illegal aliens. “Harboring” has been interpreted as broadly as merely providing illegal aliens with a means of financial support through employment.
As an employer, you are in great legal peril if you knowingly employ undocumented immigrant workers.
If any information comes your way suggesting that a worker may not be authorized to work in the U.S., you should pay attention to it and not ignore it. The reason for this is that employers are held liable not only for actual knowledge of a worker's undocumented status, but also for “constructive knowledge”; that is, basically, for having reason to know. Having reason to know might be (for instance) receiving notice from the Social Security Administration (SSA) that someone on your payroll is using a Social Security number (SSN) that doesn't match the name for that number in the SSA database.
Can you avoid the problem by hiring independent contractors? Although you are not required to confirm the legal status of a person you hire as an independent contractor, if you know or have reason to know that an independent contractor is not authorized to work in the U.S., you can nevertheless be held legally responsible.
Some people say, “All my competitors hire illegals and get away with it. If I don’t continue to hire illegal workers too, I will have to go out of business.” Unfortunately, the fact that other people break the law and get away with it is not a legal defense. In fact, arguing that “all of my competitors do it” amounts to an admission that you are hiring illegal workers “to obtain a commercial advantage or private financial gain” which is one of the elements that makes your actions a serious criminal offense.
Penalties for hiring or “harboring” undocumented immigrant workers can range from a civil fine of $375 per unauthorized worker, to imprisonment for up to ten years.
About Gray Reed's Labor & Employment Team
Gray Reed’s Labor & Employment Department counsels employers on all employment laws and regulations, and help clients effectively manage their workforce through drafting and implementation of contracts, policies and handbooks. Importantly, Gray Reed’s employment lawyers are skilled litigators and approach all issues from a trial perspective. For more information on Gray Reed’s Labor & Employment Department and its attorneys, click here.