The Trump administration’s first year in office has been highlighted by battles on the immigration front, bringing new challenges to small businesses such as car wash establishments. According to the Association of Car Wash Owners, New York City alone is home to 118 such establishments, some of which are individually owned by immigrant entrepreneurs and many of which are staffed by newly arrived or even undocumented immigrants. From Supreme Court challenges to ramped-up enforcements, car wash owners should be alert to the issues at the forefront of this important battle. Two issues especially relevant to car wash owners are the administration’s efforts to terminate DACA and the increase in ICE raids in the workplace.
DACA TERMINATION PLANNED, BUT HALTED
To many car wash owners, the pendulum surrounding the Deferred Action for Childhood Arrivals program (DACA) seems to swing in a new direction every month. As it currently stands, DACA allows certain undocumented minor immigrants to receive a renewable two-year period work authorization and protection from deportation. As of 2017, close to a million individuals were enrolled in the DACA program, many of whom work in the service industry for small family businesses. As an employer, you should pay special attention, as it is likely that some of your employees may find themselves to be DACA beneficiaries — perhaps without even knowing about it.
DACA has been a crucial immigration initiative since 2012, but the current administration in late 2017 had sought to terminate the program as part of President Trump’s election mandate. This rescission would have rendered as many as 545,600 beneficiariesineligible for renewal and could have made them subject to deportation after the program’s planned expiration on March 6, 2018.
However, the proposed rescission quickly met fierce resistance from lawmakers and found itself being challenged in courts across the country. The most recent swing comes from a federal judge who issued a preliminary injunction keeping the controversial program in place. As of February 2018, several federal courts have joined in keeping DACA alive. Legal appeals have gone up to the Supreme Court, where the rescission issue may soon be addressed. Until then, the fate of DACA will likely travel through the federal appeals court or even through Congress, where both political parties have expressed a commitment to get a deal done but are currently deadlocked on a legislative solution. As it currently stands, DACA may very well be on its last legs but is still alive and kicking.
WHAT DOES THIS MEAN TO EMPLOYERS?
You may not be surprised to hear that some of your employees could be DACA beneficiaries who are waiting anxiously for news about the program and whether they can continue to work for you. This is because every DACA recipient should have an Employment Authorization Document (EAD), which allows the recipient to legally work up to the document’s expiration date, but not a day more. As a practical consequence of the recent federal preliminary injunctions, the USCIS — the agency in charge of DACA — is still processing renewals for eligible recipients. This means that a DACA beneficiary upon renewal of their status will remain eligible to work for you up until their EAD expires, regardless of the outcome of the court battle. On the other hand, the recent litigation does not render a person eligible for DACA where the person would otherwise not be. In fact, USCIS is currently not accepting and will not process new applications for DACA. Therefore, if a worker suddenly claims to be authorized to work based on recent developments, you should be cautious.
CAN’T I JUST DISCHARGE A DACA RECIPIENT NOW?
Of course, strategic planning is an important part of any business, but you cannot discharge employees based solely on their immigration status. First, the current law regarding DACA is extremely fluid and new directives could be issued any day. It is possible that a legislative solution could soon be reached to stabilize the future of the program. Second, and more importantly, DACA recipients as authorized workers are entitled to the same protections against discrimination in the workplace as other regular workers. At least one court has found that federal law prohibits discrimination and illegal discharges based on an employee’s DACA status. Therefore, you should not terminate any employees out of fear that their permits may expire in the future.
To take it one step further, it is also not advised to ask your employees about their DACA status at all or take it into account when making personnel decisions. In most cases, you will not know for sure if any of your employees are DACA beneficiaries unless they voluntarily disclose this information to you. This is because EADs are issued by immigration officials under a wide variety of immigration categories — many of which have nothing to do with DACA. To the extent possible, avoid making assumptions about your employees’ immigration status based on their accent, appearance, or nationality.
EXPIRED EAD CONSEQUENCES
Retaining good, loyal workers is hard. However, penalties for hiring unauthorized workers are even harsher. If Congress does not act, current law requires you to discharge the worker immediately if his EAD has expired. Of course, you can cushion the blow by offering severance packages or other benefits as appropriate. However, if you continue to knowingly employ undocumented workers, you may be liable for civil penalties ranging from $548 to over $4,000 per infraction. Immigration officials conduct regular audit checks, and criminal penalties are known to accompany civil fines. For example, as recently as 2013, 14 managers from the well-known Danny’s Family Car Wash chain in Phoenix were criminally charged for illegal hiring practices related to unauthorized workers. This is a dice you should not roll.
ICE RAIDS AND HOW TO PREVENT THEM
After years of prosecutorial discretion by the previous administration, the Trump administration is bringing its immigration enforcement to work. Small businesses such as car washes, nail salons, and restaurants have found themselves in the cross-hairs of an aggressive enforcement policy leading to a dramatic rise in workplace raids in the past few months.
For example, in early January, the administration conducted a series of coordinated raids on dozens of 7-Eleven convenience stores across the nation and arrested 21 employees who were given no warning that ICE was coming. Just a month later, ICE undertook another sweeping raid of 122 businesses in Southern California in just a five-day span and arrested over 212 undocumented immigrants in the process. Needless to say, an ICE visit can potentially be catastrophic for a small car wash business. Not only can it wreak havoc on your business operation and leave your employees in fear, but it may also leave an indelible stigma on your business reputation. If your goal is to mitigate the consequences of such an event, here are three things you can do:
1. Be on the Lookout for Fraudulent Documents
ICE places a high priority on investigating document fraud, which has been blamed for facilitating the rise in unauthorized employment. As a business owner, you are legally required to obtain and maintain a Form I-9 from each of your employees. Upon the employee’s hire, you are required to examine the supporting documentation(s) that your employee provides to complete Section 2 of the form. You have an obligation to accept the document if the document appears genuine and relates to the employee. Otherwise, you must refuse it. The standard the government uses to measure your conduct is “reasonableness.” This means you are not required to be a document expert, but if a reasonable person would notice a discrepancy, you are expected to do so as well. Be especially wary of misspellings and signs of obvious fraud. For instance, if your employee presents a document in which his name is spelled differently than the one in Section 1, you have an obligation to inquire about the difference in spelling.
If upon examination the document reasonably appears to be genuine and to relate to the individual, you may ask the employee to correct the Form I-9, initial the change, and attach a memo explaining the discrepancy before accepting the document. In the event of an audit, following these steps will likely lead to a faster audit and should drastically reduce the chances of a follow-up raid.
2. Be Proactive in Addressing Form I-9 Issues Before ICE Does
Form I-9 discrepancies remain one of the main reasons why ICE may choose to pay you a visit. To mitigate this possibility, a good practice is to implement internal audits to address errors or omissions before ICE gets a chance to. However, a word of caution: You may be put in a precarious position if you appear too aggressive in your audits. Any audits you conduct should be uniformly applied. The federal Immigration Reform and Control Act makes it illegal for employers with four or more employees to discriminate on the basis of citizenship status or national origin. In addition, some states such as California are fiercely protective of employees who allege workplace discrimination. Just last year, the popular restaurantchain Panda Express was fined over $400,000 by the Justice Department for allegedly discriminating against non-U.S. citizens when re-verifying their permission to work. Therefore, be cognizant of the risks of conducting an aggressive audit only to find ICE show up at your door, albeit for a different reason.
Throughout the audit, if you notice any errors or omissions, do not attempt to erase them. Instead, have the employee correct the error by drawing a line through the incorrect information and initial and date by the correct information. If a form is missing, have the employee fill out the current version of the form and staple it with the rest of the records. You should make sure not to backdate any information. A properly done audit could go a long way in preventing ICE disruptions.
3. Know What to Do During an ICE Visit
If the worst has come to pass and ICE shows up at your door, it is nevertheless highly important to know the limits of their enforcement power. ICE agents may enter public areas such as the lobby or waiting areas of your business without permission but may only enter private areas with a judicial warrant. A judicial warrant will be signed by a judge and will come from a federal or district court. It is not the same as an administrative warrant, which comes from the Department of Homeland Security and does not allow for private entry.
ICE agents have the authority to detain or arrest any of your workers pursuant to an immigration warrant, but you do not have to sort your employees by their immigration status or even direct ICE to any specific individual. Nevertheless, you should never lie, hand over false documents, or sign any papers without examining them with an attorney. If ICE does not detain any workers but serves you an I-9 audit, you have three working days to produce the I-9 forms. Often, ICE will ask for supporting documentations which may include a copy of your payroll, a list of current employees, and business licenses and may thereafter choose to assess penalties for procedural or substantive noncompliance. If your car wash business has been subject to an ICE raid, you should seek an attorney who may be able to assist you in navigating through the finer points of immigration enforcement law. After all, as a small business owner, we understand how important it is to protect your business and your workers.
Jacob M. Monty is the managing partner of the Houston-based law firm, Monty & Ramirez LLP. Monty is board certified in labor and employment law by the Texas Board of Legal Specialization. He regularly advises employers on a wide array of labor and employment issues. Monty & Ramirez LLP is an employment, labor, and business immigration law firm. Please visit www.montyramirezlaw.com for more information.