The Department of Homeland Security (DHS) has been distinguishing itself as one of the most widely covered federal agencies in the news. The enforcement arm of DHS, the Immigration and Customs Enforcement (ICE), has drawn increased interest as it has weekly arrested and detained hundreds of alleged unauthorized workers at various worksites throughout the United States. In the political arena, nothing brings a debate to a pitched level of intensity like the specter of people being deprived of their liberty. The images of handcuffed workers being marched onto police buses for processing and deportation elicits heightened emotions, whether from feelings of sympathy or vindication.
Of course, pathos follows emotion, but with all narratives some underlying logic drives the story. The discourse of worksite enforcement is driven by the logic of border security, and security is the legal and political agenda in the post-9/11 world. Employers are not immune from this agenda, which may be obvious when a portion of an employer's workforce is rounded up by the ICE. Yet, even employers far removed from the possibility of an enforcement action still bear the burden of living under the border security regime. Employers are still responsible for verifying employment authorization of their employees, but this obligation has increased significantly under the new border security narrative.
In a recent edition of DHS' Leadership Journal , Assistant Secretary for Policy Stewart Baker stated that "[i]f we can reduce the lure of illegal employment, we can reduce the pressure on our borders." As a result, DHS has placed great emphasis on worksite enforcement and has correspondingly promoted its E-Verify system. Currently, participation in E-Verify, an online employment verification system administered by the U.S. Citizenship and Immigration Services (USCIS) and the Social Security Administration (SSA), is voluntary, but DHS has been pushing vigorously to make the system mandatory.
State governments have acted as well. For example, as of January 1, 2008, the Legal Arizona Workers Act requires all employers in Arizona to verify the employment eligibility of newly hired employees through the E-Verify program. In 2008, Mississippi passed the Mississippi Employment Protection Act, under which the state will phase in mandatory newly hired employee eligibility verification with E-Verify for all employers between July 1, 2008, and July 1, 2011. Other states, including Georgia, Colorado, Idaho, Minnesota, Rhode Island and Oklahoma, require employers in certain sectors, such as government employers and contractors, to verify their employees' work authorization status under E-Verify.
It appears that E-Verify is here to stay. Although it is a new system, the underlying rationale is the same as the Form I-9 process, through which employers verify the employment authorization of new hires by inspecting their employment authorization and identity documents. Furthermore, E-Verify does not replace the I-9 process, since participating E-Verify employers must continue to comply with the I-9 regulations in addition to navigating through the E-Verify system.
Much of the debate around E-Verify has focused on the program's accuracy and efficiency. There have been reports of "tentative nonconfirmations" of employees who are ostensibly employment authorized, which require the employer to navigate a set of procedures to ensure that the employee has resolved any outstanding issues with the DHS or SSA. Many employers are reluctant to get involved in a system that may give tentative nonconfirmations of an employee's employment authorization status, as it leads to uncertainty about the employer's future ability to continue to employ the person at issue.
Aside from the current limitations of the system, many attorneys have expressed concern that an employer's participation in E-Verify will increase the likelihood of an enforcement action by the ICE, at least to the extent that the ICE will have increased access to an employer's records. This concern was purely speculative until the Government Accountability Office's (GAO's) report to Congress on May 6, 2008. According to the GAO, the ICE is given access to E-Verify data to assist in enforcement actions. Although the ICE has no direct role in monitoring employer use of E-Verify and does not have access to program information that is maintained by the USCIS unless it requests such information from the USCIS, ICE officials informed the GAO that program data could indicate cases in which employers or employees may be fraudulently using the system, which would help the agency better target its worksite enforcement resources toward those employers. The ICE reported several instances where it requested and received from USCIS access to employer data to assist in executing worksite enforcement actions.
Moreover, attorneys have been concerned that employers are waiving their Fourth Amendment right against unreasonable search and seizure by participating in the E-Verify system. This concern stems from language in the "Memorandum of Understanding" (MOU), which employers are required to sign when electing to participate in E-Verify. The following MOU language has raised some concern: "The Employer agrees to allow the Department of Homeland Security and SSA, or their authorized agents or designees, to make periodic visits to the Employer for the purpose of reviewing E-Verify-related records, i.e., Forms I-9, SSA Transaction Records, and Department of Homeland Security verification records, which were created during the Employer's participation in the E-Verify program." In signing the MOU, employers also agree to allow DHS to interview their employees and to make employment and E-Verify-related records available to DHS.
Although the language of the MOU is permissive, this may be entirely redundant, since the U.S. Supreme Court's case law in the area of administrative searches and seizures has been lenient in favor of agency access to records. An employer's exposure to government searches and enforcement actions may increase as a result of its participation in E-Verify but not because of any language in the MOU. Rather, exposure flows from the flimsy protections afforded by the Fourth and Fifth Amendments in the area of regulatory searches.
First, it is well settled that the physical custody of incriminating documents does not protect the custodian against their compulsory production. Where employers are required to maintain records under statutory or regulatory authority, the employer cannot hide behind the right against unreasonable search and seizure or the right against self-incrimination when the government commands the production of records. See Wilson v. U.S ., 221 U.S. 361, 380 (1911).
Second, the Court has held that corporations can claim no equality with individuals in the enjoyment of the right to privacy, since corporations are creatures of state law and are endowed with "public attributes." See U.S. v. Morton Salt Co ., 338 U.S. 632, 652 (1950). As a result, agencies are seemingly permitted to engage in fishing expeditions - based on nothing more than "official curiosity" - to determine whether an employer corporation is complying with the law. Id . The agency need only have the authority to make an inquiry, the agency's request must not be too indefinite and the information sought must be reasonably relevant to the investigation. Id . In other words, the agency's request for documents must be "reasonable." Most agency requests for corporate records will fall well within these wide parameters. See In Re Administrative Subpoena , 253 F.3d 256 (6th Cir. 2001) (comparing the two prevailing tests for validity of administrative subpoenas).
Third, agencies generally are not required to make a showing of probable cause when issuing an administrative subpoena for production of documents. See Oklahoma Press Publishing v. Walling , 327 U.S. 186, 216 (1945). Whereas the Fourth Amendment mandates a showing of probable cause for the issuance of search warrants, subpoenas are analyzed only under the Fourth Amendment's general reasonableness standard. One of the primary reasons for the difference rests on the distinction between physical searches and "constructive" searches. Id . at 213. The latter type of search is usually involved when the government issues a subpoena, which is a request that the subject of an investigation produce its records for government inspection, as opposed to an on-site, physical search of a company's premises. As a result, the government need not have probable cause to request documents; that is, an actual violation need not be probable in fact. The purpose of an investigative subpoena is to discover and procure evidence in order to make a determination, not necessarily to prove the pending charge. Under these circumstances, the government is only limited to the extent that it shall not act arbitrarily or in excess of statutory authority.
A final concern relates to DHS' power to conduct warrantless, on-site searches of E-Verify employers. Again, the MOU explicitly allows DHS "to make periodic visits to the Employer for the purpose of reviewing E-Verify-related records."
The Supreme Court has long held that an administrative agency's search of an employer's premises requires probable cause and that warrantless searches of an employer's premises are prohibited by the Fourth Amendment. See See v. City of Seattle , 387 U.S. 541, 545 (1966). Yet, consent is an exception to the requirement that searches be conducted under authority of a warrant or its equivalent. Beyond these general points of law, the question of what constitutes proper consent can be rather confusing. Courts are divided on the issue of whether consent given as a condition of receiving government contracts or benefits precludes an objection to a search on Fourth Amendment grounds. Some courts hold that offering consent under a government contract is a proper waiver of Fourth Amendment rights, see U.S. v. Brown , 763 F.2d 984 (8th Cir. 1985), but others require that the government's search be reasonable notwithstanding the existence of a purported consent in a contractual agreement, see U.S. v. Harris Methodist , 970 F.2d 94, 100 (5th Cir. 1992).
Even if the courts were to mandate a reasonableness standard for DHS searches under the E-Verify MOU, that may provide little comfort for businesses since the reasonableness standard is so lenient. Furthermore, the scope of DHS searches may be rather extensive, since all E-Verify documents include I-9 documents and SSA Transaction Records but could also include payroll records.
Geoffrey Forney is an Associate in WolfBlock's Employment Services Practice Group and a member of the group's Immigration Services Team. Geoffrey handles all aspects of immigration and nationality law, including employment and family-based immigration, removal (deportation) defense and asylum.