ABA Panel Touts Internal Controls As Best Defense Against Enforcement Action

September 2008

Former federal immigration agent, Mark A. Cangemi of Igbanugo Partners Intl'l Law Firm, spoke on worksite enforcement and employer compliance at an August 9 session of the American Bar Association 2008 annual meeting. The session was titled "Anything Goes: What Corporate Clients and Their Lawyers Need to Know About Immigration Laws and Policies" and was sponsored by the ABA Commission on Racial and Ethnic Diversity in the Profession. Other speakers included Joyce A. Menan (DuPont's corporate immigration specialist in the company's legal department) and Yasmine Zyne (Tyco Fire & Security's chief labor and employment counsel). Herbert Igbanugo, founding shareholder of Igbanugo Partners, moderated the panel.

Cangemi, who joined Igbanugo Partners after serving the U.S. government for 34 years in immigration law enforcement, was the ICE special agent in charge of the Twin Cities area when the U.S. Immigration & Customs Enforcement (ICE) raided Swift & Co. in December 2006.  He said Swift representatives' "arrogant attitude" and "Bring It On" stance, despite findings that more than a third of its employees had committed document fraud, were key factors in the ICE investigation.

He advised the audience to develop strong internal controls -- the employer's best defense against an enforcement action for hiring undocumented workers. "If you can document a system of internal checks and balances, you can end an investigation," Cangemi said. "The government will go elsewhere, where there's more chance of finding culpability."

"The key is how you respond to the government," he said. "Challenging the government is not going to get you very far. The government has shown a willingness to put up a tremendous amount of resources and not back off."

He commented that the ICE E-Verify program, a voluntary program for employers seeking to verify a person's authorization to work in the United States, is not a panacea. "I am concerned with some corporations who will look at E-Verify, but look no further into their own corporate procedures and operations," he noted.

In response to questions posed by the moderator, Igbanugo, employer representatives discussed their companies' internal controls.

At DuPont, "we make sure our employees are legal," without waiting for federal pressure, said Menan. After conducting an I-9 form audit at a country club operation, "we now get H-2(B) visas for all our groundskeepers."

At Tyco Fire & Security, officials quickly respond to evidence of document problems and monitor its independent contractors, reported Zyne. "We do not differentiate immigration compliance from other legal compliance," she said.

Both company representatives agreed that internal communications are an important employer tool. Neither, however, expressed strong support for the E-Verify program.

"DuPont wants nothing to do with E-Verify until it's made mandatory," Menan said. "We have heard that it makes trouble, is very complicated, and is hard to do properly."

DuPont has declined government contracts in states where E-Verify is mandatory for contractors, Menan said. "Fortunately, the contracts have been small enough that we can do without that business, but we don't know if we can continue that."

Tyco initially wanted nothing to do with E-Verify, "but we do comply with state laws requiring its use for contractors," Zyne said.

The panel session was covered in the Bureau of National Affairs, Inc. (BNA Inc.) Daily Labor Report, Number 155, August 12, 2008 issue.