Fast food execs become McFelons as ICE moves in

While Immigration and Customs Enforcement (ICE) may say that their enforcement efforts target areas involving critical infrastructure and national security, national headlines would indicate otherwise. Recently, an ICE investigation of a Nevada McDonalds franchise resulted in guilty pleas by two franchise executives to felony charges that they knowingly hired illegal alien workers. The franchise owner, Mack Associates Inc., agreed to pay a $1 million fine for the violations and to be placed on probation during the period that the fine is outstanding. A former vice-president for the franchisee faces a maximum penalty of up to five years in prison and a $250,000 fine.

In Cleveland, 58 employees of Casa Fiesta, an Ohio based chain of Mexican restaurants were arrested and charged with illegally gaining employment. In Jacksonville Florida, the 34 year owner of Taurus Painting, Inc. was arrested for harboring illegal aliens and now faces up to 10 years in prison. In Greenbelt Maryland, Francisco Solano, co-owner of El Pollo Rico Restaurant pleaded guilty to conspiracy to harbor aliens and conspiracy to launder money. And in Postville Iowa, ICE raided Agriprocessors, Inc., one of the nation’s largest kosher meat processing plants. According to media officials over 400 employees of the plant were detained by ICE. Two plant supervisors were arrested for aiding and abetting aggravated identity theft. Dozens of false INS documents were seized from the human resource department at the plant.

None of these businesses are part of our nation’s vulnerable or critical infrastructure. None would appear to pose a direct risk to national security. The fact of the matter is that security is ultra tight at water treatment plants, nuclear power plants, dams, electrical power plants, and the like. If ICE had to rely on infrastructure entities to support the bulk of their activity they’d spend the days sitting on their thumbs. Entities that are perceived to share a role in the nation’s critical infrastructure or other risk intense operations are security aware. They draw, and rightly so, a good portion of DHS’s attention. But raids and audits of businesses involved in manufacturing, food service, and agriculture, that employ relatively modestly paid workers make for easy headlines and help to drive home just how real the problem of illegal workers is.

That raids of such businesses occur more frequently has a more practical side and that has to do with how these businesses are identified for audit and investigation. Audits are generally not conducted on a random basis. Audit targets are identified through tips and through data analysis. Tips may come from customers, employees, business partners, neighbors, or other concerned citizens. A key method of identifying targets for audit and investigation is through the analysis of data generated by “no match” letters sent to employers by the Social Security Administration. No match letters are sent to employers who reported more than 10 no-matches that represented more than 0.5% of the W-2’s submitted by that employer.

Train your Human Resource personnel to handle no-match letters appropriately. Although a copy of the letter is also sent to the employee, it is the responsibility of the employer to conduct due diligence in order to resolve the discrepancy noted in the letter. We are aware of some employers who, convinced that the discrepancies were largely the result of clerical error, considered them an inconvenience and ignored them. Largely, no-match letters may be the result of transcription errors, name changes due to marriage, or other clerical issues. However, ignoring the letters may put you on ICE’s radar screen and cause an audit and subsequently an investigation. Moreover, suspending or summarily terminating an employee who is the subject of a no-match letter without properly investigating the cause of the discrepancy may violate the law.

ICE provides “Safe Harbor” for employees who receive a “no-match” letter so long as specific steps are followed. To find out more about the procedures to follow when a no-match” letter is received visit the ICE’s website at http://www.ice.gov/ or call the Safe Harbor Information Center at 800-421-7105.