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High Noon-There is a New Sheriff in Town and It's You

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Article: High Noon-There is a New Sheriff in Town and It's You

Article Date: Monday, January 15, 2007

Article Source: Compli

High-Noon-There-is-a-New-Sheriff-in-Town-and-Its-You-12102007.pdf

HIGH NOON:
THERE IS A NEW MARSHAL IN TOWN…AND IT’S YOU!

By: James E. Lawrence
Compli
610 SW Broadway, Suite #600
Portland, Oregon 97205
503-294-2020 x121
503-318-3621

1952

• 1952 was an interesting year. “_Isms” were in full swing…both large and small in their historical import but generally opaque in their ultimate trajectory:

o Unionism: Steel mills were nationalized by President Truman to prevent a strike (imagine that happening now!)
o McCarthyism: the House Un-American Activities Committee was in full swing
o Communism: Korea
o Fundamentalism: Farouk of Egypt had himself announced as a descendant of Prophet Muhammad. Roman Catholic Church bans   books of André Gide.
o Environmentalism: A "killer fog" descends on London (In the process coining the word "Smog", for "smoke" and "fog").
o Internationalism: United Nations begins work on the new United Nations building in New York City
o Favoritism: The Greatest Show on Earth, C.B. DeMille’s final multi-million dollar epic wins Best Picture, beating out High Noon, a $750k morality play “Western” with 7 noms and 4 wins, including Best Actor, Gary Cooper.

Classics in Political Cinema
Funny how big things start small [INSERT ACORN ANALOGY HERE]… In the midst of all of this activity, two legislators got together to consolidate the many and varied immigration laws of the land at the time.

“The Immigration and Nationality Act, or INA, was created in 1952. Before the INA, a variety of statutes governed immigration law but were not organized in one location. The McCarran-Walter bill of 1952, Public Law No. 82-414, collected and codified many existing provisions and reorganized the structure of immigration law” - U.S. Citizenship and Immigration Services website, Dept of Homeland Security.

Seems like pretty innocuous stuff on first blush, and for decades this compilation of our political brain-trust was essentially ignored and unenforced. Wish we could say that for a whole host of other legislation from said brain-trust, but I digress…

The INA of 1952 did come in handy for elections and other moments of ineffectual political purpose, e.g. Kennedy/LBJ/Nixon/Carter/Reagan era legislation, and generally when building a political base on the backs of the “worried classes” (Author’s Note: I am not completely cynical but I am working on it…).

From these peak moments of high drama and little else, culminating in the political fallout of 9/11 and the failures of government on so many levels that a complete revamp of departments was called for (e.g. rearranging the chairs on the deck of the S.S. Bureaucracy), thus was born the Department of Homeland Security.

Setting the Stage
Little noticed in the massive paper shuffle going on in DC was a combining and renaming of the Immigration and Naturalization Service enforcement arm, “La Migre” and the U.S. Customs Service enforcement arm. Now that is what I would call a bear hug (Father was a truck driver). The new name, “ICE” stands for Immigration and Customs Enforcement, www.ice.gov. Cooool site name toooo.

“Created in March 2003, Immigration and Customs Enforcement (ICE) is the largest investigative branch of the Department of Homeland Security (DHS). The agency was created after 9/11, by combining the law enforcement arms of the former Immigration and Naturalization Service (INS) and the former U.S. Customs Service, to more effectively enforce our immigration and customs laws and to protect the United States against terrorist attacks. ICE does this by targeting illegal immigrants: the people, money and materials that support terrorism and other criminal activities. ICE is a key component of the DHS “layered defense” approach to protecting the nation.” – Immigration and Customs Enforcement – About Us.

Sounds ominous somehow...like Orwell’s 1984 but without the sophisticated British accents.

“For years, the government has downplayed interior enforcement of our immigration laws. Inspections of I-9 compliance were nearly extinct; illegal workers thrived under a "catch and release" deportation standard and lenient I-9 standards; and no one seemed to care about the Social Security mismatch problem. All of that is changing…” – David Whitlock, Fisher & Phillips LLP (noted employment practices law firm for dealerships)

Now THAT is ominous, wouldn’t you say?

I C EWE...
It’s already happening. According to a recent article in the South Florida Business Journal…

“Employers are “between a rock and a hard place” in the wake of new federal immigration procedures, because they’re forced to police their workers for violations, South Florida attorneys said.” – South Florida Business Journal – by Julia Neyman

…Which seems a bit outside ICEs original intended purpose:

“We investigate employers and target illegal workers who have gained access to critical infrastructure worksites (like nuclear and chemical plants, military installations, seaports and airports) through our Worksite Enforcement Initiative.” – Immigration and Customs Enforcement – About Us.

Well, apparently this set of “critical infrastructure worksites” now includes dealerships. Who’d have thought?

(Author’s Note: “Finally,” right? You were probably wondering where I was going with all this…)

The Actors
Like lawyers, plying their legal trade in the dingy florescent-lit halls of legislative offices and Government-Issue buildings, ICE has a purpose too. Implementing and enforcing the procedures that fall out of laws like the INA of 1952 and the extremities and appendages since added to this Chimera...to quote Shakespeare’s Hamlet “there’s the rub.”

It seems they haven’t been able to police and enforce the requirements of the INA Chimera and are looking to outsource the effort. The ex-Marshal in High Noon experienced the same thing in that the townspeople who demanded law and order, like our legislators, set up ineffectual systems to enforce it and suddenly found themselves toothless without a “civilian” willing to stand up and close the deal. Starting to sound familiar?

(Yay, Another Author’s Note: From Fisher & Phillips, Dealer legal firm - “On October 10th, the U.S. District Court for the Northern District of California issued a preliminary injunction blocking implementation of the Department of Homeland Security rule that would use Social Security mismatch records as a tool for immigration enforcement…”

…that is until March 2008…to give time for the Court to rule on the merits of the case and for the DHS to rejigger the legal basis for the new procedures. This is mainly because “the suit (brought by the ACLU, AFL/CIO & Others) also alleges that the new regulations overstep DHS and SSA's authority to investigate employers and employees.” - Orlando Business Journal

Funny part is ICE enforcement actions are still ramping up…nothing like government inertia… Yikes!)

And…Action!
The Social Security Administration periodically checks the accuracy of I-9s and other personnel information. When they find a discrepancy, they send what is commonly known as a “Mismatch Letter.” When/if dealerships received such a letter they traditionally looked at paying a small, no-match fine as the cost of doing business.

In the new enforcement environment employers face now, if dealers don't address their mismatches, they or any employer of any size in any state in the Union will be in trouble with Department of Homeland Security’s ICE. Nice!

"The only thing that's really changing is the penalties…" - Roma Rowland, president-elect of the Human Resource Association of Broward County.

“But for thousands of Florida [ENTER YOUR STATE HERE] employers who have received and ignored mismatch letters, the effect could be massive. The rules require that employers actually fire employees they cannot match ... This will create a very tense environment for employers, and it will put them in the tenuous position of having to investigate their own workers." - Deirdre Nero Valladares, chairwoman of the Greater Miami Chamber of Commerce's Immigration Taskforce

Seems like an interesting way to open dealers up to discrimination and wrongful termination suits. If the dealerships follow the termination requirements of the new ICE procedures without the proper documentation and processes in place, dealers will face an onslaught of new litigation, not of their own making…How’s that for an unintended consequence?

ICE’s New Script
For decades much of the INA legislation was simply unenforced or enforced when politically expedient and inconsistently so even then. Much of the history of Immigrants coming to America’s shores is characterized by the peaks and valleys of legislative hubris or complete non-enforcement. A good example is the Mariel Boatlift which officially began April 15, 1980 and ended October 31, 1980:

“Known as the Mariel Boatlift, approximately 124,000 undocumented Cuban migrants entered the United States by a flotilla of mostly US vessels in violation of US law.” – GlobalSecurity.org  

The folks who run ICE aren’t dumb and have an “institutional memory.” They saw a history of lose/lose enforcement situations with yet another one in the making. With the shadow of past experience cast on the expected effectiveness of the DHS’s ICE enforcement activities, another way to impose the legislation needed to be found.
 

“Say hello to my little friend!” – Tony Montana – in 1983’s Scarface, directed by Brian DePalma

ICE 2377-06 – Federal Register Pub date: June 14, 2006
Safe-Harbor Procedures for Employers Who Receive a No-Match Letter
AGENCY: U.S. Immigration and Customs Enforcement, DHS.
ACTION: Final Rule.
DATES: This rule is effective [insert date 30 days after date of publication in the
FEDERAL REGISTER] see above.

SUMMARY: U.S. Immigration and Customs Enforcement is amending the regulations relating to the unlawful hiring or continued employment of unauthorized aliens. The amended regulation describes the legal obligations of an employer. Under current immigration law when the employer receives a no-match letter from the Social Security Administration or receives a letter regarding employment verification forms from the Department of Homeland Security. It also describes "safe-harbor" procedures that the employer can follow in response to such a letter and thereby be certain that the Department of Homeland Security will not use the letter as any part of an allegation that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States. The proposed rule adds two more examples to the current regulation's delineation of "knowing" to illustrate situations that may lead to a finding that an employer had such constructive knowledge.

These additional examples involve an employer's failure to take reasonable steps in response to either of two events:

1. The employer receives a written notice from the Social Security Administration (such as an "Employer Correction Request" commonly known as an employer 'no match letter") that the combination of name and social security account number submitted to the Social Security administration for an employee does not match agency records

2. The employer receives written notice from the Department of Homeland Security that the immigration status or employment-authorization documentation presented or referenced by the employee in completing Form 1-9 was not assigned to the employee according to Department of Homeland Security records. (Form 1-9 is retained by the employer and made available to DHS investigators on request, such as during an audit.)

The rule also states that DHS will continue to review the totality of relevant circumstances in determining if an employer had constructive knowledge that an employee was an unauthorized alien in a situation described in any of the regulation's examples. The "safe-harbor" procedures include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee's identity and employment authorization through a specified process.

The October 10, 2007 District Court action placed an injunction on the SSA to send 2007 mismatch letters to 140,000 employers (including dealers it seems), however this didn’t preclude the use of past mismatch letters in ICE investigations, but at least dealer are not forced to do the policing just yet...

(This Just In: “On December 5, 2007, Department of Homeland Security ("DHS") Secretary Michael Chertoff released a statement confirming that DHS filed an appeal to the Ninth Circuit Court of Appeals requesting that the court lift the injunction against implementing the DHS no-match rule.” Fisher & Phillips, Dealer Attorneys.)

The saga continues…

Memorizing The New Script
As a dealer and a potential “Associate ICE Investigator,” your new role will likely require you to remember your lines by March 2008. In the meantime, what do you suppose “the totality of relevant circumstances” means or what that newly “specified process” is? And how do you respond to “mismatch letters?” The situation reminds me of that old joke: “How do you get to Carnegie Hall? Answer: Practice!” Yeah, I know…still not funny. But dealers can take heart from the fact that this new script/legal requirement is more about “good-faith” compliance than about being a “Big Brother” to your employees.

There are companies (guess who’s?) that can provide the content and the automated processes necessary to meet these obviously onerous government regulations. It’s not quite like renting a DVD, but it’s a close analogy.
The supporting cast to a dealer’s new role includes: legal content, automated distribution, automated training, automated monitoring, clear actionable exception reporting and a way to audit the whole thing without constant managerial supervision. You need a “good faith” compliance effort that automates the costly yet burdensome (e.g. non-revenue generating) manual processes you are probably use to but would love to drop.

An Award For Your New Role
“Good artists borrow…Great artists steal” – Pablo Picasso
“Smart artists buy the rights and avoid the litigation” – Jim Lawrence

Have you looked out on your dealership lately? I mean more than just a cursory look. An audit is more akin to what I was referencing. When was the last time you checked the I-9s in your employee’s personnel files? Any thoughts on what you might find? Have you ever received a “mis-match” letter from the friendly people at the Social Security Administration? Would you know what to do if you did? It
doesn’t really matter as your newly “procedured” role as “Associate ICE Investigator” (or Aii!) requires that you make the effort to not only respond in the necessary and required manner to the incoming mismatch letters but to also have in place termination procedures for those folks who simply can’t come up with the proof you need (Mr. Dealer) to avoid cutting checks for fines, as well as to remain out of jail.

Not quite the “thought police” of 1984, but we are getting closer, big brother. Yippee! (Author’s Comment: Now understand that these folks are likely selling your cars, recon’ing your used cars, prepping your new cars and repairing your clients’ autos. In short, they are making you money. What happens when you start to get really good at your new “Aii” role? That is a political question some commissariat somewhere will have to figure out.)

Having a Dealership Compliance Management System (DCMS) will automate the terrible process you will not want or like to enforce, but your new role requires that you accept the laws of land, until they change. At the end of the day, having a DCMS and a “good faith” program in place will mitigate the tenuous problem of “constructive knowledge” that leads to major fines and possible jail terms for “harboring” illegal aliens.

What’s My Motivation?

High Noon, according to Tim Dirks, Movie Reviewer, was a political allegory of the times in and around 1952. He states:

“This taut, tightly-scripted, minimalist film that tells the tale of a solitary, stoic, honor-bound marshal/hero, past his prime and already retired, who was left desolate and abandoned by the Hadleyville townspeople he had faithfully protected for many years (symbolically - during the World War II years). Due to the townspeople's cowardice (representing cooperative witnesses before the HUAC), physical inability, self-interest, expediency, and indecisiveness, he is refused help at every turn against a revenge-seeking killer and his gang. Fearful but duty-bound, he eventually vanquishes the enemy, thereby sparing the civilized (democratic) town the encroachment of barbarous frontier justice brought by the deadly four-man group of outlaws (symbolic of the aggressive threat in the Korean War, or the HUAC itself). Embittered by film's end, he tosses his tin star into the dirt of the dishonorable frontier town.”

If one were to connect the dots, one could suggest the cowardly townspeople might be the enforcement agencies who have run out of ideas and placed the burden of immigration enforcement on the dealers who are facing a vicious competitive situation, razor thin margins, increasing regulation and a general decline in the marketplace, when all dealers really want to do is sell cars to happy customers. If one were to connect the dots.

The Closing Scene
ICE enforcement actions have resulted in criminal and other charges against employers and management personnel and the shutdown of several businesses. Those involved face possible jail time and significant penalties for "harboring" illegal immigrants. The Dealership’s general level of public unpopularity makes them the perfect scapegoat and a star attraction when it comes time for the “perp walk” down the red carpet. So you need to watch your back.

“Immigration compliance is no longer something that can be an afterthought, unless you are prepared to have ICE knocking on your door,” – Lawyer with Fennemore Craig in Phoenix.

When Gary Cooper felt essentially forced to impose the law (remember he just married his 23 year old Quaker bride and quit the force) it was to protect himself and his family and to avoid a future of running away to avoid trouble... an interesting piece of memorabilia was a poster that described the theme of the deserted, lone marshal who stubbornly insisted on delaying his newly-married life (would you delay your marriage to 23 year old Grace Kelly for gosh sakes?!) in order to confront his former nemesis:

“The story of a man who was too proud to run.”

Dealers with the right tools and processes in place can also develop the capacity to follow the script written and directed by the nice folks at ICE. You just have to decide to stay and execute it, or else face the prospect of a duel with ICE at High Noon.

James E. Lawrence has extensive experience in building cutting edge dealership software in the fixed operations and front end of dealerships and is involved in managing the compliance software development at Compli. For more information on this article or any other compliance management software needs, visit www.compli.com or e-mail Jim at jim@compli.com.