With the current administration’s emphasis on cracking down on illegal immigrants, employers can expect that Immigration and Customs Enforcement (ICE) will be either showing up on their property or conducting audits to examine whether any employees are not authorized to work. Even if everyone in the workplace has nothing to fear, the visits can be a disruption, and possibly a longer and more intrusive one if leadership hasn’t prepared.
The time to plan is before a visit happens, to ensure that both employees and managers know what to expect and know their rights. Many organizations and employees do not know how to respond when ICE agents show up unannounced. The agents may be seeking to search your facility, retrieve documents and/or speak to your employees. Below are key do’s and don’ts to help you navigate these situations effectively.
DO:
Have a plan: Assign a representative to speak to ICE on the company’s behalf. Ensure that the person designated is properly trained and is knowledgeable about the employer’s rights and those of impacted employees.
Inform employees about ICE access: Let your employees know that they do not have to allow ICE agents to enter. Rather, they can say that they are not authorized to grant permission to enter and that the agents should speak with the manager or managers the employer has designated.
Advise your employees they do not have to speak with ICE agents: They can choose to (1) stay silent, (2) direct any questions to the designated managers, and/or (3) ask for a lawyer. The same advice goes for your designated manager or representative. Leadership should consider communicating this to employees in an in-person meeting to explain what rights they have and to answer any questions employees might have with respect to both their rights and where ICE can and cannot go into at the facility.
Inform employees about documentation: Advise your employees that they do not have to hand over any identification or documents to ICE.
Define private areas: Consider clearly marking which areas within your business are “private.” The public and visitors (which would include ICE agents) cannot enter private areas without permission or proper legal authority. Even if you have separate doors or entries into your plant operations or warehouse, consider placing signs that actually say “PRIVATE” on them.
Maintain composure: Stay calm during any ICE raids and train your employees to do so. If employees attempt to run, ICE agents may say that they are likely violating immigration laws and arrest them.
Monitor and document the visit: Watch the ICE agents to see whether they are complying with the terms of any warrant they present. If state law allows it, video what the ICE agents are doing. Make sure to read the warrant and make a copy if you can.
Assist with detained employees: If ICE arrests any of your employees, ask the ICE agents where the employees are being taken. That information will help the employees’ families and/or attorneys locate them.
Consult with immigration counsel in advance if needed: Retain someone who can respond quickly to any ICE raid or at the very least be available to handle questions that may arise during a raid.
Maintain good notes: Write down the number of agents and the names and badge numbers of agents involved. Also write down notes regarding everything that occurred: Did the agents make you or your employees believe you could not move or leave? Did they mistreat anyone? Make notes of everything you saw or heard and of any items that were seized. You can also ask the officers for a list of items taken.
Coordinate with unions: If your business has a union, notify the employees’ union.
Practice: Practice your plan so you can identify any gaps in training or knowledge.
Conduct an I-9 audit: Ensure that you’ve done an I-9 audit recently so you can (1) determine whether there could be any issues with your employees and (2) have these handy if ICE seeks to audit your documents.
DON’T:
Don’t let ICE agents into a private area without a judicial warrant: The designated manager needs to review the warrant to ensure it grants agents the ability to go into private places. ICE agents have the right to be in any public areas of your business without permission or a warrant. Those public areas would include a dining area in a restaurant, a lobby and a parking lot.
Don’t let ICE into private areas with an administrative warrant: A judicial warrant is signed by a judge and would say “U.S. District Court” or “State Court” at the top of the warrant. The warrant would also have information concerning the time frame for the search, the premises to be searched and a list of items to be searched and seized. Those items will likely include payroll and time records, I-9 forms and employee identification documentation. On the other hand, an administrative warrant is not from a court. It Awould say “Department of Homeland Security” at the top. So, if an ICE agent tries to enter a private area and does not have a judicial warrant, you can tell the agent you are not permitting them to enter without a judicial warrant. You can say something along the lines of “This is a private area. Do you have a judicial warrant? If not, you cannot enter.” (Click here for an example of both judicial warrants and administrative warrants.)
Don’t disclose employee information: Avoid telling the ICE agent whether a particular employee named in an administrative warrant is working that day. You do not have to do so.
Don’t interfere with searches: Do not physically interfere with a search that goes beyond the scope of the warrant. You can inform the agents that you object to the search but do not attempt to stop them or intervene.
Don’t provide false information: Do not lie or provide false information or try to destroy or hide any documents or items. Similarly, do not help employees hide.
Don’t neglect local resources: Do not forget to research now what local services exist to help immigrants and to pay attention to community organizations that may be able to assist your employees.
Advance preparation, employee training and regular compliance checks are key to managing unexpected ICE visits, while ensuring that you respond effectively and lawfully.
