Could You Really Go to Jail For Employing Illegal Workers?
Posted on Aug 20, 2019 on Musings from an HR Atty by
The ICE raids in Mississippi causes employers to ask if the specter of jail is really a concern for employers. Like most legal questions, the answer is – it depends.
What are the basic rules?
Employers are not required to employ employees entitled to work in the United States, but they can’t knowingly, through actual or constructive knowledge, hire and/or employ undocumented workers. In other words, it is not illegal to employ someone with all the right looking paperwork, even though that paperwork is all fraudulent. BUT, if the papers are an obvious fraud, or the employee admits being illegal, now you have a different story.
Most experts predict criminal action will follow for some employers/managers involved in the Mississippi raids. While not everyone in these companies will be aware of such misconduct, the actors who did the misdeeds should not be surprised.
So what is the take home?
For small employers, top management is often involved in the execution of I-9’s. If you checked the papers and they looked good, jail time is unlikely. If you told your assistant to check the papers and make sure they look good, again, there is little need for worry. (If, unbeknownst to you, your assistant decided to take fake papers to help the individual, you should be safe, but your assistant is at risk.) However, we find in small companies, the “grapevine” travels fast and far. If that applies to you, be careful what you know. If a reasonable source informs you that one of your employees is illegal, it is up to you to take action. If you do nothing, you may be dancing on the line of criminal liability.
For large employers, many of your risks are similar but the connection between the management representative guilty of misconduct and the owner will be an issue. If the owner gave an order to not properly scrutinize documentation, that may be criminal. Even if the inference is there, that is reason for concern. But, if top management expressly demanded full compliance and that order was disregarded, top management will likely be safe.
Over the coming weeks, we will see what happens in Mississippi. If new standards start to emerge, the blogging will continue.