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Sea Change In Compliance Landscapes

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Sea Change? Maybe I’ll start with the definition of “sea change” a marked change: transformation, a sea change in public policy. My point in writing this is to convey that there is a measurable change taking place in policy enforcement, frequency, and methodology with respect to labor and workplace compliance. In October of last year, Acting Director of Immigration and Customs Enforcement, Tom Homan, said that he has asked Homeland Security Investigations (HSI) to increase the amount of time spent on worksite enforcement investigations by 4 or 5 times. Another major point of emphasis has been charging personnel managers and HR managers criminally, for compliance failure events and sexual harassment related activities. Don’t believe me? Just ask Asplundh Tree Experts, Inc., they have the dubious honor of largest I-9 compliance fine/forfeiture on record at $95,000,000 dollars. No that’s not a typo, they just got nailed for $95 million. If that wasn’t bad enough, they also have employees pleading guilty to criminal charges, others facing conspiracy charges and the sad part of the story is that it could have been avoided.

It’s long past time for employers, and personnel managers to take a hard look at their compliance and training processes and determine if they are “best practice”, because the enforcement numbers say it’s only a matter of time before you are the subject of a “work-site enforcement action”. Isn’t that a great term? Really encapsulates how unpleasant the visit from ICE is going to be, “work-site enforcement action”…..I’m willing to bet there aren’t many hiring managers and personnel managers out there who want to be charged for crimes related to company policies and processes they participate in. . It’s a mistake to think that your business isn’t at risk for an ICE audit. Your only line of defense against a compliance problem can’t be blind luck, hoping to avoid the audit.

#metoo as we have seen, has opened the way for victims of sexual harassment to step forward and confront their alleged harassers. These are two very large driving forces behind the dramatic increase in personnel manager liability, just because there are more audits and claims of this behavior occurring. The internal process and I-9 audits will not happen, unless managers and management make it a priority. My advice is that it’s always better to be proactive, rather than indicted. Wouldn’t you agree?

Let’s look at what can be done to face this “sea change” in compliance head-on and prepare for it. These action items aren’t listed in any particular order, because a failure in any one of them will cause the Compliance Management Program to fail. During our discussion, we have determined there is personal liability concerning lawsuits and enforcement actions. It’s also understood that the likelihood of these actions is increasing over time. What can you do to protect either your business and your managers?

1)   Document staff training for federal employment compliance procedures and sexual harassment.

2)   Consult with a labor attorney to construct a Compliance Management Program.

3)   Ensure best practices are in place for processes that have corporate or personal liability attached to them.

4)   Invest in an expert compliance system to present documents, collect results and archive them securely.

Be vigilant! Protect yourself, your freedom and your company by confronting this “sea change” in compliance with a proactive compliance assessment and implementation of a compliance management program that includes an expert compliance system.