Overdue DiligenceBy Lisa Ridgely, Deputy Editor of Contracting Profits
If there's one thing Porter Industries has learned in the past few years, it's that due diligence in hiring practices pays off. The Loveland, Colo.-based building service contractor has always been committed to making sure undocumented workers don't get hired — and that commitment has been put to the ultimate test not just once, but twice.
The first time was in 2008, when the company volunteered for membership into an elite group of businesses partnering with U.S. Immigration and Customs Enforcement (ICE). Porter was the first (and is still the only) BSC in the country to go through a rigorous self-assessment and federal audit process that is the ICE Mutual Agreement between Government and Employers, or IMAGE, program.
IMAGE helps businesses combat unlawful employment and uncovers and reduces vulnerabilities that help illegal aliens get jobs. It also verifies that members are working with the authorities to do their very best to follow the rules and set examples for their respective industries.
For Porter President Steve Hendrickson, the IMAGE certification signified that 17 years of staff training and education on I-9 completion and valid document identification had paid off. While most BSCs will claim they abide by federal hiring rules and guidelines, the IMAGE partnership lends incomparable credibility to that claim, he says.
"Our IMAGE certification just verified everything that we had been doing and gave it credibility from a third party rather than just saying we do it right," he says.
However, the next time Porter's hiring procedures were put to the test was not such a positive experience.
Imagine Hendrickson's surprise in January 2009 when a competitor served Porter with a lawsuit alleging the use of illegal workers.
Dustbusters Inc., a small BSC based in the Denver area, filed the civil lawsuit seeking damages against two competitors to whom they lost accounts, one of which was Porter. The suit, filed in Boulder County Court, alleged Porter had been awarded contracts after submitting lower bids, presumably made possible by the use of undocumented workers. In such a case, the burden of proof is placed on the defendant — and thanks in part to participation in the IMAGE program, Porter had all the evidence it needed to show that proof.
Finishing Touch Janitorial, Longmont, Colo., was also included in the claim.
The owner of Dustbusters, Steve Blacker, declined to comment on the case, as he is still in litigation with Finishing Touch. It is unclear whether he was aware of Porter's IMAGE certification when he brought the suit, but after a year in court and a thorough investigation of hiring documents by the lawyers involved, Porter was officially released from the suit at the end of December.
"Through the disclosure and discovery process, no evidence was submitted to the court which indicated that Porter has ever willfully hired illegal aliens," states the settlement and release agreement.
The suit being dropped is an additional verifier that Porter has been on the right track, Hendrickson says. However, the potentially precedent-setting case serves as a warning to any BSC.
"We learned that even with diligent efforts, any company could find itself in a position to defend its hiring practices," he says.
While the Colorado lawsuit is an isolated case, it demonstrates the level of frustration among many business owners, including contractors, and the lack of confidence in the current immigration laws to keep illegal workers out of the workforce. Hendrickson, himself, says he understands why a BSC would take a competitor to court.
"We actually agree that there should be some legal recourse for companies that lose bid opportunities because the competition is hiring illegals," Hendrickson says. "The reality of it is, it's a problem in our industry."
Desperate Times, Desperate Measures
Cleaning contractors can't escape suspicion of other contractors in bid situations. They've all heard stories of businesses using illegal workers to cut down on payrolls, submit lower bids, and secure more contracts. And it's no doubt there are plenty of unscrupulous employers who are out to make a buck, no matter what.
"There are professional companies in our industry who abide by all the rules, regulations and hiring policies put in place by the U.S. government," says Mark Klein, senior vice president of marketing and sales for Sunshine Cleaning Systems, Ft. Lauderdale, Fla., and chairman of the Building Service Contractors Association International (BSCAI) Governmental Affairs Committee. "Then there are companies that skirt or completely ignore the rules by not following the same hiring processes. This is where the bid process for custodial services becomes unlevel and disjointed."
It can be downright infuriating for BSCs to lose business to a company that may be breaking the law to reach those low bids. Immigration laws don't effectively deal with the massive illegal alien population in the United States, and many are losing hope for the immigration reform that politicians have been promising for some time.
Meanwhile, most contractors that do practice ethical and legal hiring standards will say that those standards aren't being actively enforced, so unless ICE comes knocking, it really is up to individual BSCs to hold themselves accountable and to play by the rules.
It's unlikely for most BSCs to ever face a lawsuit from a competitor that would force them to submit their I-9s for investigation by a team of lawyers, but they may be held accountable by a federal audit team at ICE, which has ramped up investigations of employers in the last year.
ICE served three times as many notices of investigation, 1,444, in fiscal 2009 than it did the previous year with 503, and is on pace to double last year's number in 2010.
No background checking system is foolproof or perfect, but what matters is that contractors are putting in a good faith effort, Klein says. And those who don't, who act in "bad faith," and who enable the illegal hiring practices (including employers, building owners and property managers), should be criminally punished.
The new ICE worksite enforcement strategy uses a two-prong approach to enforcing employer accountability: criminal and administrative.
"We kind of reinvigorated, refocused the program on employer compliance, not really targeting individual employees," says Brett Dreyer, unit chief for worksite enforcement for ICE. "We feel we can get more bang for our buck by going after the employers themselves, making sure they comply with the law and make sure they take steps to have a legal, authorized workforce."
The criminal approach includes conducting criminal investigations that seek employers who are knowingly violating the law — and often ICE finds other crimes, such as labor, health and tax violations, being committed at those worksites. The administrative approach uses administrative tools and authorities that Congress has given ICE to enforce the law.
ICE is allowed to go to any employer and request to review Form I-9s, Dreyer says. Violations can result in fines ranging between $110 to $16,000 per violation.
Dreyer points out that, despite the feeling in the janitorial industry that it is being targeted by ICE, no industries are being specifically targeted. Investigations are initiated based on leads and intelligence information, such as allegations of wrongdoing, not random selection.
"One of our greatest sources is people in the business community — whether it's a corporation or employees or officers of businesses — they routinely provide us with information for a variety of reasons," Dreyer says. "And quite often, more often than not, we find that that employer is not violating the law. But like any law enforcement agency, any investigative body, that's our mission."
Many believe there is a need for contractors in the cleaning industry to step up and take responsibility for their role in the illegal immigration issue. While BSCs represent a variety of opinions about illegal immigration and its ramifications, it's generally agreed that the presence of employers who will exploit illegal workers for their own financial gain — through illegal hiring practices or illegal subcontracting — is the biggest problem facing the cleaning industry in 2010.
"People keep pointing to undocumented aliens as the problem," says Art Rose, president of Mr. Clean Maintenance Systems in Colton, Calif. "But I know, because I was in the business before the undocumented alien problem existed, that the problem is the cash pay."
Rose says his pet peeve with the current system of ICE audits and investigations is that they're focusing on the businesses that do provide a paper trail. If a contractor is paying undocumented workers under the table in cash, there are no documents to audit and sometimes no office door to knock on.
Customers also have to take some responsibility for contributing to the problem by rewarding those contractors with accounts, enabling them to stay in business.
"The real winner in that whole scenario is the customer — he's the one that gets the lower price by hiring a contractor that's willing to evade the law," Rose says. "The losers are the taxing agencies, the insurance companies, then the employees because a lot of times the employees are taken advantage of by not even getting minimum wage for their work. That scenario existed long before the undocumented alien was a problem."
Especially in the wake of the recession, janitorial has become extremely price-driven. On one hand, it's understandable that customers are feeling the economic crunch and are making cutbacks; on the other hand, customers who take a low bid often aren't blind to how that math was achieved, Klein says.
"It's not just the companies that are hiring these people — it's the building owners, the customers," Klein says. "They know exactly what's going on and they turn their head and I think they should be held accountable."
What BSCs Can Do
Use of E-Verify is the top recommendation of ICE, but it isn't the only recommendation. It's only part of a comprehensive list of best hiring practices that include: using the Social Security Number Verification Service; establishing a hiring and employment eligibility verification policy; putting in place internal training programs elating to the hiring and employment verification process, including correct completion of I-9 forms and fraudulent document detection; and arranging for annual I-9 audits.
"No employers are expected to be expert document examiners, like an ICE professional should be, but there are definitely prudent things that employers should be trained to recognize," Hendrickson says. "BSCs should receive training so they have the ability to identify obvious, fraudulent documents."
A recent study of E-Verify commissioned by the federal entity that runs it, the U.S. Department of Homeland Security, found that about half of illegal aliens checked through the program are wrongly cleared to work, which begs the question: can employers trust it? Hendrickson believes they can.
"Part of the reason why they have so many false positives, where it verifies the person when it shouldn't, is because employers do a very cursory, if any, job examining the document of the individual being offered the job," Hendrickson says.
With identity theft so widespread, it's possible for false documents to contain a legitimate name and social security number. With proper training, Hendrickson says, BSCs can screen out those documents before the information is ever sent to E-Verify. As the system becomes more technologically advanced, more of the results returned to employers include photos that assist in confirming the identity of those being offered a job.
BSCs that do use the system have to complete an online training before they are allowed to start entering I-9 information into the online program.
L&J Building Maintenance, Topeka, Kan., has federal and state government accounts in several states, and uses E-Verify for all hiring — even though it's only required to use the system for federal accounts. Cathy Burke, office assistant for L&J, says she's confident the system works, and through using it, she has honed her investigative eye as well.
"It's excellent," Burke says. "It's very concise and explains every little thing that you're supposed to do with the I-9. It helps with the alien registration numbers — it makes you pay really close attention to make sure that what you're reading is the amount of numbers that there's supposed to be on the card."
Currently, about 188,000 employers use the free program. Cleaning services, included under the umbrella of "administrative and support services" industries, come in second in ICE's top 20 industries using E-Verify, with nearly 40,000 sites nationwide.
But as the statistics indicate, only a minority of BSCs are likely using E-Verify. Sunshine Cleaning, with a large workforce of about 1,200 people, opts to go with a background check performed by a private company — which Klein says checks the same databases and systems as the free, public E-Verify system. It's an additional cost, but it's worth it, and it's easier on human resources staff, who would be overwhelmed entering information for so many employees, he says.
Mr. Clean doesn't use E-Verify to verify workers' identities, Rose says — he is confident that his company's due diligence in filling out I-9s and checking documents works well.
Now that ICE has a more intent focus on employers, BSCs should make sure they have their ducks in a row in regards to documentation in hiring. As Porter Industries' experience demonstrates, even those who proactively pursue the best training and education available on preventing undocumented workers from being hired can still face questioning — in this case, questioning in civil court that, fortunately for Porter, ended up exonerating the company.
"I'm convinced that all reputable BSCs desire a level playing field from which to fairly compete for business," Hendrickson says. "Hiring properly documented workers is at least one of the best practices that BSCs should eagerly support. I think most of us can agree that significant immigration reform is past due, but until changes are made, BSCs should commit to only hiring individuals who have the legal right to work in the United States."
By The Numbers
ICE Inspections, by Fiscal Year
1,100 notices of inspection served so far in 2010 (approximate)
ICE Inspection Initiative, July 2009
654 notices of inspection served by ICE July 1, 2009
188,358 — E-Verify participating employers