If President-elect Donald Trump follows through on his campaign talking points regarding illegal immigration, the potential impact on the construction industry work force could be devastating, to say the least. According to the Bureau of Labor Statistics, approximately 30% of construction industry employees are Hispanic. This makes construction the single largest employer of Hispanics among all reported U.S. industries. In some areas of the country this percentage is substantially higher, and a large proportion are immigrants.
Despite construction industry employers’ best efforts to properly vet new hires by use of the mandatory I-9 process or through the discretionary use of the E-verify system, persons with false or stolen identification still make it through the records check. The relatively lax enforcement by Immigration and Customs Enforcement (ICE) against unauthorized workers in the recent past has caused at least some employers to relax their guard from taking reasonable precautions to ensure their workforces are documented and authorized to work in the country. In some extreme instances, including in the construction industry, some employers have turned a blind eye to the screening process.
Immigration Enforcement Under the Trump Administration
What should the industry be prepared to confront from a Trump immigration enforcement agenda? Due to high industry turnover rates, most construction industry employers seem to always be seeking help. Trump’s public position on immigration could have a profound effect, not only on current employees, but also on the pool of available workers from immigrant communities, from which the industry often draws.
In 2015, the National Association of Home Builders analyzed labor use in residential construction over a 10-year period and concluded that the flow of the immigrant community is highly correlated with the booms and busts of single-family sales and starts. Any policies that result in the net loss of current and future immigrant workers would leave companies with few substitutes for a similarly skilled, reliable, and flexible workforce to meet future fluctuations in demand. Likewise, if Trump does follow through with the promise to overhaul our nation’s bridges, roads, and infrastructure, the impact of his immigration policies may be at odds with the ability to provide the necessary labor to meet that goal.
There is, however, hope that immigration reform will be revived in some form. The president-elect’s nominee for Secretary of Labor, Andy Puzder, has spoken favorably about immigrant workers. He has been quoted as saying that the current immigration system is “unfair and unworkable,” and he has called for guest worker programs and a path for individuals in the U.S. who are without authorization to be able to adjust their status. Perhaps his views regarding immigrant labor will hold sway and the millions of workers who are actually unauthorized to work will be permitted to remain in their jobs.
Although some hope for immigration reform survives in certain quarters, during the presidential campaign Trump made several statements that raise significant concerns. On numerous occasions he stated that aliens with criminal records would be among the first targets for possible deportation proceedings. He also called for nationalization of the E-Verify system.
Using E-Verify Doesn’t Provide a Safe Harbor
Although certain federal contractors have been obligated to use E-Verify to run new hire identities through Department of Homeland Security and Social Security Administration databases for several years now, segments of construction industry employers, such as some within the residential home building industry, have not faced this obligation. Some have voluntarily registered to use the automated system under the false hope that it guarantees Form I-9 compliance or that it keeps the company 100% free from undocumented workers. Unfortunately, this has not proven to be the case in practice.
One additional area of major significance to construction industry employers is the likelihood of renewed worksite enforcement through the use of Notices of Inspection (NOIs) and renewed workplace raids by ICE. While such actions have been de-emphasized for the last several years, they are likely to increase as an important tool in the effort to deny jobs to undocumented immigrants.
The loss of job opportunities for U.S. citizens to aliens with false or stolen documentation will certainly be a critical focus of the new administration. It will renew the trend we last saw with the Bush II Administration where the industry was a particular target for NOIs. It was not uncommon for these companies to not only be penalized for their faulty I-9 records, but to also lose a large number of workers who could not pass Department of Homeland Security (DHS) scrutiny of their eligibility to work in the United States.
How to Prepare for Trump Administration Enforcement
What should industry employers do now to proactively prepare for the NOI’s and worksite raids that could soon be coming?
- Strict I-9 compliance would be the place to start. Employers should review all current procedures for compliance with I-9 requirements. The Department of Homeland Security (DHS) has recently issued a new I-9 Form which should be used for all new hires no later than Jan. 22. The new form can be downloaded at www.uscis.gov/I-9. Penalties have been doubled to a minimum of $216 for each incorrect I-9 found during a Notice of Inspection (NOI) conducted by DHS.
- Now is a good time to audit existing I-9s to ensure that all forms are fully completed. Invariably, when self-audits are conducted, incomplete I-9s always seem to materialize. These should be corrected immediately because the lack of I-9s can be used as evidence to demonstrate that an employer had little regard for complying with its obligations against knowingly hiring undocumented workers.
- Employers should also be aware that the Trump administration’s position may be at odds with their state’s enforcement agenda. For example, effective Jan. 1, California is imposing additional requirements on employers to comply with I-9 obligations. These include: prohibiting employers from requesting more documentation than required under federal law; refusing to honor documents that on their face appear genuine; or attempting to re-investigate/re-verify an incumbent employee’s work authorization using an unfair immigration-related practice. In light of such moves at the state level, it is imperative that employers review their I-9 procedures carefully and revise them where necessary.
Use These Protocols to Respond to an NOI
As we enter the Trump era of immigration enforcement, front office and human resource staff should be aware of the protocol to follow in the event of any government visit—especially one involving DHS. Following these simple steps should put an employer in the best position to confidently and successfully respond to the enforcement actions that are most likely to arise again under the Trump administration:
- Upon serving an NOI to the company, DHS may inquire regarding the employer’s hiring practices, immigration policies, or business operations. Staff should be trained to refer such questions to counsel.
- If a DHS representative persists in questioning, the employer should simply state that he/she is not authorized to respond on behalf of the company and that counsel will respond as needed.
- While in some instances DHS will secure a warrant for records and/or interviews, an NOI itself is not a warrant. As a result, the employer should not consent to any DHS interviews of supervisors without the presence of immigration counsel.
Nor should the employer consent to an immediate review of I-9 records. Employers are allowed three days in which to provide the requested I-9s, and DHS generally is willing to extend that period. This time will allow your counsel to audit the I-9s prior to producing them to DHS. This audit time is critical for your counsel to assess your I-9s, and consult and plan with the company for the next phases of the NOI process.
Although employers will welcome the expected regulatory reform likely to be undertaken by the Trump administration, employers—including those in the construction industry—should expect increased scrutiny and enforcement activity with regard to immigration and labor. Consequently, employers should take this opportunity to be proactive, analyze their current practices, and make any necessary changes now, before the new administration starts its enforcement agenda.
