Guest post by Michele Ames
In Lewis Carroll’s classic tale, Alice faces a host of inexplicable anomalies: two-sided mirrors, time running forward and backward, the need to read jabberwocky and ambulatory chess pieces that cause no end of havoc.
In short, she went through the looking glass. And so are many companies having to deal with immigration investigations.
No doubt you’ve seen the headlines about companies including Chipotle Mexican Grill (disclosure: a long-time GBSM client) being subjected to “employment compliance inspections” by Immigration and Customs Enforcement, a unit of the Department of Homeland Security. In contrast to Bush-era bum’s rush raids on factories and business offices, the new modus operandi is what they call a “silent audit.” This is where ICE selects a good-size target company and then – without revealing why that company was singled out -- requires it to produce thousands of documents.
ICE reviews all of the I-9 employment eligibility verification forms, then alerts the company to any workers who do or may not have proper documentation. Typically, the company has no choice but to quickly fire those employees to put itself in compliance with standards it thought it was meeting, and to establish at least minimum position to begin negotiating with ICE toward resolving the situation.
Even so, the government fines the company for having employed people whose paperwork may not have been legit. And all during this process, ICE holds at least the threat of escalating its actions to even bring the company’s leadership up on charges.
There are a million issues with this approach to enforcing America’s immigration laws, starting with the fact that the employers are being investigated by a public agency as transparent as a wall of cinder blocks.
These companies are caught in a untenable double bind. They must check for illegal workers with each hire, and do so thoroughly enough to root out falsified documents. But whatever system they use must be applied uniformly across the board, or they will be sued for discrimination by the very potential employees they are required to investigate.
Almost none of the corporations that get the silent audit treatment have broken any law. Far from it. Federal laws only require companies to make a good faith effort in trying to not hire undocumented workers. But you wouldn’t think that from what these companies pay in hard dollars and damage to their brand reputations. Meanwhile, the governmental entity behind the chaos has no obligation to disclose why they started the investigation, what they find or even when the investigation is closed.
They are at liberty, however, to announce just about anything they want in relation to the investigation at any time they choose.
These ICE actions leave a lot of companies asking themselves if they have, in fact, gone through the looking glass into a world where infractions real, perceived or with no basis at all are taken as definitive. Where the people asking questions give no answers.
There’s a name for this kind of environment. If a company finds itself navigating through a world where logic doesn’t apply and two plus two equals purple, they are no longer playing in corporate governance and public relations.
They’re playing politics.
For many companies, their otherwise excellent legal, communications and investor relations teams aren’t enough. Now they will have to spend considerable resources on high-powered government relations executives – meaning lobbyists -- and a flotilla of lawyers who specialize in this byzantine parallel universe.
The only way out is back through the looking glass. It’s a process that resolves itself on a political timetable governed by the next election cycle and the sessions of Congress, not a quest for justice governed by the rule of law. This is a playing field where the chess pieces move themselves, where both the opponent and the referees speak an strange jabberwocky.
It an expense that creates no value, no brand equity. In the end it doesn’t really fix anything. But for companies that find themselves arbitrarily targeted, it is an unfortunately reality that has to be reconciled as quickly as possible.
. . . . . . . . . .
. . . . . . . . . .