Estimated reading time: 10 minutes
I’m going to get right to the point today. It’s possible that a government agency – and specifically, U.S. Immigration and Customs Enforcement (ICE) – might show up at your worksite. As a human resources professional, you should have a plan for this. It’s better to be prepared than not.
To help HR pros understand what it means to have a government agency like ICE visit your worksite, I spoke with my friend Mark Neuberger, attorney with the firm of Foley & Lardner LLP. Mark provides representation of management in all areas of employment law, including guidance and compliance with workplace-related immigration laws. Mark has spoken with us before, I really like his comments on this earlier article about changing employee compensation.
And you know I mention this every time, but please don’t forget that Mark’s comments shouldn’t be construed as legal advice or as pertaining to any specific factual situations. If you have detailed questions, they should be addressed directly with your friendly neighborhood labor and employment attorney. Given today’s subject matter, I want to share with you something that Mark said during our interview. “The issues we are about to discuss are complex, involve a number of different laws including The Constitution and of late, it is clear the governmental agencies are taking a new and very aggressive approach to enforcement, so it is always best to get specific legal advice.”
Mark, thanks for being here. Before we talk specifically about ICE, let’s talk about onsite visits in general terms. Can government agencies visit employers onsite? If so, what agencies typically do onsite visits? And are they allowed to visit with and without notice?
[Neuberger] The government can and frequently does show up unannounced at employer sites. The bigger issue is what they may legally do when they get there. As a general rule, government agents are free to go anywhere in public areas which can include privately owned property where a business is generally open to and invites the public at large. Think shopping malls, stores, parking lots, lobbies and waiting areas. To go beyond public spaces into private spaces, enforcement agents need either specific permission from the property owner or a search warrant.
Now that we’ve established that government agencies can do onsite visits, with and without notice, let’s talk specifically about ICE. We all read the news. There have been a lot of stories about ICE visiting employers. If ICE were to show up at an employer’s work location, does the organization have to let them in (or can they require setting up an appointment)?
[Neuberger] These days it will likely be more than ICE that shows up at an employer’s door as many state and local law enforcement agencies have entered into what are called Section 287(g) agreements where ICE effectively ‘deputizes’ the state and local agencies to enforce federal immigration law. While there could be many reasons for such an appearance, they mainly fall into three distinct categories:
1) A general raid or inspection;
2) They are looking for one or more particular persons, or
3) They are looking for records and documents.
For each of these, the agents should have a warrant of some type. It is critical that a management representative reviews the warrant, which must identify specifically what they are looking for and where they are permitted to go.
For these reasons I think every employer should designate one or more managers to be the point person in the event law enforcement shows up. At a minimum, those persons should receive some advanced training on:
- How to interact with law enforcement,
- Be knowledgeable about which are the private and public spaces on the property, and
- Receive some training in the different type of search warrants that exist.
For example, there are Judicial Warrants signed off by a sitting judge, there are Administrative Warrants issued by a governmental agency without going before a Judge, there are warrants seeking the arrest of specific individuals and there are warrants to search certain places or to have access to business records such as U.S. Form I-9.
You mentioned private and public spaces. Once ICE is onsite, are they allowed access to the entire workplace? Or is the organization allowed to designate where they are permitted? For example, I could see organizations wanting to protect confidential and/or proprietary information. And if the workplace requires personal protective equipment (PPE), is the employer required to provide it to ICE agents?
[Neuberger] The warrant will specify when and where they can go. Agents should be informed of workplace hazards and asked to use PPE and other safety and security protocols required of everyone entering the workplace. However, we have all read news reports of government agents allegedly acting beyond the scope of their warrant and perhaps even the law. The fact is they have guns and other weapons and if they do not want to listen to your instructions, they may actually use those weapons which could lead to a disaster.
It is also critically important to understand that anyone who interferes with or obstructs law enforcement activities could be subject to arrest and prosecution for a wide variety of crimes. Just look what happened to a sitting state court Judge in Wisconsin who was alleged to have helped an immigrant appearing before her sneak out a side door when federal officers showed up in her court room. After a jury trial, the Judge was convicted of a felony, had to resign her job, will likely lose her law license, and could go to prison.
The lesson here is you should inform the agents of your position, but if they don’t listen, do not resist. Simply make notes or record video from a significant distance away such that they can’t claim you are interfering with their operation. The time for a challenge is in later legal proceedings where your notes can be evidence.
My experience with government agencies being onsite is focused on reviews of paperwork and possibly interviewing employees. In your experience, is ICE simply reviewing paperwork? Or are they talking with employees as well?
[Neuberger] They can review documents and interview employees. The most common type of document request is to audit the employer’s Form I-9. Such a request could come from the Department of Justice, The Department of Labor, or the Department of Homeland Security. In the case of an I-9 audit the employer will be given three days to produce them.
Increasingly, I hear of employers storing their I-9s with third party vendors such as professional employer organizations (PEOs) and payroll service providers who say, “I can’t get them that quickly from the vendor.” That is not a very good answer, so my recommendation is to have a plan in place now. And while you are at it, now is great time to audit the accuracy of your I-9’s and that you have one for each employee. My experience in auditing I-9s for employers is I find very few employers score 100% on my audits. Employers can be fined up to $2,861 for each improperly completed FormI-9 even if the applicable employee has proper work authorization.
I’m sure that people reading this want to know, “Can ICE arrest my employees onsite?” And if so, is there anything an employer can do about it?
[Neuberger] As is obvious from the above, the answer is YES! What you should try to do is determine which law enforcement agency has arrested your employee and ask where they are being taken. Don’t be surprised if you get no answers.
This is a great reason to update your emergency contact list for each employee so you can notify the employee’s family members or significant others of the arrest. The extent to which an employer wants to get involved in assisting the arrested employee with their legal defense is an individualized determination. If the employee lacked proper work authorization the focus of the government may turn back to the employer to determine if they were complicit or if the employer took all proper steps in vetting the documentation. If significant numbers of your employees are arrested, the employer needs to immediately get its own legal advice because they will likely become a target for enforcement action of some kind. Remember, immigration is one of the few areas of employment law where companies and individual mangers can be criminally prosecuted.
I wanted to revisit your earlier comment about training managers. Should organizations consider working with counsel to develop a “Here’s what you do …” document. Something that designated company representatives would have access to in case ICE did show up. Is that a best practice? And if so, what are 1-2 things that employers should include in the document?
[Neuberger] Absolutely and any employer who has not already done so is late getting into the game. In a posting on my law firm’s website, we lay out what should be in such a plan. As with everything HR related, having a plan or policy stashed in a folder on your computer is useless unless the right people receive training and education. And, you have to stay current.
The entire area of immigration law changes almost daily between Declarations and Executive Orders from President Trump, Department of Homeland Security (DHS) regulations, and court cases challenging everything from travel bans to revocation of work authorizations. We’ve compiled some additional resources for employers on the Foley website.
Last question. The focus of this article has been on what employers can do when ICE shows up at their workplace. I could see employees being concerned – even if they aren’t the focus of the visit. Is there anything that HR professionals can say to employees?
[Neuberger] Part of the plan I recommend that employers develop should include communications with employees both before and after the government shows up.
I want to extend a huge thanks to Mark for sharing his knowledge and resources with us. And to elaborate on his last comment about developing a plan, here’s a quick recap of the action items Mark mentioned – it’s kinda a long list:
- Create a plan that managers and employees can follow in the case of law enforcement coming on site. Make sure everyone knows where the document can be located.
- Executives should discuss how they would handle an employee being arrested onsite. Don’t wait until it happens. Bring in your legal counsel to the conversation.
- Know what’s considered to be public and private property at your worksite.
- Designate a group of managers to act as a point person should law enforcement show up. And give them the proper training on how to handle an onsite visit.
- With guidance from legal counsel, establish a communications plan that covers how to communicate with employees and potentially the media. Give individuals who will be speaking on behalf of the organization the proper training.
- Confirm that work areas are clearly designated with signage, etc. indicating when health and safety equipment should be worn.
- Don’t resist law enforcement or assist targets to evade arrest.
- Conduct a Form I-9 audit. And put a process in place to regularly monitor for compliance.
- Ask employees to update their emergency contact on file. Put a process in place so this happens regularly.
It’s going to take some time to put these pieces in place. But that’s better than scrambling in reaction to law enforcement showing up and not having a plan.
The post What to Do if Immigration and Customs Enforcement Shows Up at Your Worksite appeared first on hr bartender.
