What You Don't Know Can Hurt You

April 2008
Enforcement Advisor, Volume I, Issue 3

The recent school bus crash with a van driven by an illegal alien that resulted in the death of four students in Cottonwood, Minnesota, underscores employers' need to address identity theft issues and compliance concerns. This case drew significant media coverage and a demand for information relating to the history and identities of the people involved. Initially, the driver of the van claimed to be from Puerto Rico with a local residence and employment. Local, state and federal resources joined forces and quickly sought documentation from her employers and executed a search warrant at the driver's residence that disclosed she was a citizen of Guatemala and illegally present in the United States. It was also determined that the driver was previously employed at the Jenny-O processing plant in Willmar, Minnesota, and a cabinet shop.

According to public statements by representatives of these two employers, their records "were in order" and the employment verification process was defeated by the apparent identity fraud. Left unanswered is what additional investigation is being pursued by authorities. The employers could be sanctioned if the investigation discloses serious violations of the verification process. Therefore, the employers need to determine similar cases of identity fraud and the extent of any similar violations by other individuals.

An event of this nature can quickly cascade into inquiries that the employer might not be prepared to meet. The lesson then is to be prepared to weather the review process and, if challenged, have sufficient information to counter public criticism or official inquiry. This preparation should include:

1. Documented training procedures related to the verification of identity and work eligibility.

2. Policies and procedures that clearly define the processes that relate to verification issues such as Social Security no-match letters, internal complaints, use of false documents, suspense files, reverification, official requests for documentation and media inquiries.

3. Training related to the identification of false documentation, interviewing techniques and interaction with investigatory agencies.

4. Training related to discrimination in the hiring process including document abuse provisions enforced by the Office of Special Counsel.

5. Internal audits that recur with written assessments including trends, patterns and vulnerabilities. The assessments may include turnover rates and types of sub contractors employed (i.e. maintenance, food service delivery, grounds keeping, cleaning and construction, which have documented histories of employing illegal aliens). If transportation and/or housing are provided to employees, how is that accomplished, documented and paid for? Does the company have internal recruitment incentive programs and, if so, how are they monitored? Is there a secondary review process in the hiring procedures? Are business contracts or operations being undertaken in states that mandate verification procedures such as E-Verify? Are rejected applications maintained in a suspense file and purged on a routine schedule?

An event that is unanticipated by an employer and not within the scope of employment (such as the Cottonwood case) may nonetheless cause an enforcement "spotlight" to be directed at the employer. It is best to anticipate these eventualities and be prepared to withstand scrutiny by governmental agencies and the public.