US Immigration and Customs Enforcement has gone to many workplaces over the past year, both at high-profile companies like Target and Hyundai as well as businesses that don’t grab headlines.
Workplace immigration enforcement operations are not new and have occurred under many presidential administrations, according to the American Council on Immigration. But these efforts have proliferated as “part of President Trump’s efforts to increase the detention and deportation of unauthorized noncitizens,” ACI notes.
The agency’s aggressive tactics this past year – especially when agents make their presence known in public areas in or near an employer, such as a parking lot – have had a chilling effect on businesses in areas where ICE has been operating.
Legal and HR experts are advising employers to prepare for any potential visitation involving ICE, not just a raid or conducting operations near a worksite. That might include, for instance, an audit of the I-9 employee eligibility verification forms that must be completed by employers and those they hire.
“Being prepared ahead of an audit or raid can greatly reduce anxiety, panic and risk,” said Maddie Grippin, assistant general counsel at HR outsourcing solutions firm Engage PEO, in a written reply to CNN.
That preparation shouldn’t be confined to higher-ups. It should involve all employees, including frontline workers, because they may be the first point of contact once ICE arrives, said Shanon Stevenson, a partner at labor and employment law firm Fisher Phillips. The firm provides clients with a preparedness checklist for ICE audits and raids.
Give staff a point person to contact
Every workplace should designate an onsite manager to be an immigration point person, Stevenson said.
This person should ask to see any warrants from the ICE agents and email a copy to the employer’s immigration attorney. That attorney should quickly review the scope of access that the warrant allows. (See below.)
If ICE first approaches an employee who’s not the immigration point person, that employee should say they don’t have authority to grant them access and let them know they will get someone, Stevenson said. In all cases, she added: “Be respectful. Don’t argue with the agents.”
If there is a locked glass door between you and the agents before they’ve gained entry, you might ask them to hold up their warrant and take a picture, Stevenson recommended.
Understand what a warrant permits
ICE doesn’t need a warrant to access areas that are open to the public, such as lobbies and parking lots.
But to gain access to non-public parts of a workplace – such as employee break rooms, private offices or warehouse floors – ICE will need either: (a) the express consent of the employer; or (b) a judicial warrant, which will have the court’s name at the top and a judge’s signature at the bottom.
That judicial warrant is a court order, said Ian Macdonald, an attorney and partner in the labor and employment practice of Greenberg Traurig LLP. It should specify the scope of ICE’s search (e.g., which people they’re seeking and what property may be seized) as well as where ICE agents may look (e.g., which floors, buildings or campuses).
Instead of a judicial warrant, an agent might present an administrative search warrant signed by ICE officials. But that is not a court order, Macdonald said in an email.
“It may authorize an arrest if the individual is encountered in a place ICE can lawfully be, but it doesn’t give ICE any greater right to enter non-public areas of a workplace than they would have with no warrant at all,” he said.
Macdonald’s advice to employees: “Do not consent to entry into non-public areas unless company counsel confirms a valid court-issued warrant requires it.”
A recent AP news story reported that a leaked ICE memo asserts that the agency has the right to enter people’s homes without a judicial warrant if it has an administrative warrant to arrest someone with a final order of removal. But neither Macdonald nor Stevenson sees that memo having any bearing on the obligations and rights of employers when interacting with ICE.
“In my view, it doesn’t change the core workplace advice,” Macdonald said. “What the memo changes is that officers may claim expanded authority more often, so employers should train staff to follow a simple script: Request the judicial warrant, get a copy, call the response team/counsel and avoid consenting beyond the warrant’s scope.”
Indeed, Stevenson said in an email, “ICE has already tried to improperly enter worksites without judicial warrants,” she said in an email. “Trained employers are already pushing back on warrantless entries.”
Neither ICE nor the Department of Homeland Security responded to a request for comment on the issue.
Put up signs marking non-public areas
Non-public areas should be visibly and clearly marked by signs that say, for example, “Staff only,” “Private” or “No public access,” Stevenson said.
And employees should make sure locked doors to the non-public areas aren’t left propped open, she added.
Should an ICE agent without authorization gain entry to a private area, the New York Attorney General’s Office advises the employer’s designee to say, “I do not consent to your search or to you entering this private area.”
If ICE agents search anyway, the NY AG office recommends not trying to physically stop them. Instead, if possible and without interfering with the officers’ actions, “document what happened, including whom you spoke to, what you said and what their response was.”
Keep a record of what ICE takes
ICE may provide a list of what the agents take with them after a raid is complete, Stevenson said. But an employee accompanying ICE during its operations should also try to record what has been taken for the company, she recommended.
It can be done with a pen and pad, or using your phone camera if ICE doesn’t object. Some states may require that you seek ICE’s permission to record, but even if yours doesn’t, Stevenson recommends asking for it.
“Safety comes first,” Stevenson said. If you feel you’re putting yourself at risk by recording, don’t do it. Given how ubiquitous security cameras are inside and outside of workplaces, the employer may have footage of the search.
Make essential information for staff easy to access
Contact information for the employer’s immigration point person should be available to everyone. If employees have company ID badges, the information should be on a card that can be kept with their badge.
In addition, employers might also order and distribute “red cards” from the Immigration Legal Resource Center, Stevenson noted.
The red card does two things: Reminds everyone of their constitutional rights under the Fourth and Fifth Amendments, and offers examples of what an individual can say to protect those rights (or they can simply show the card to a federal agent).
Grippin also recommends “employers have employees update their emergency contact information so that if a raid does occur, employers can get in contact with employees’ preferred contacts.”
“Should there be an apprehension, the employer can ask for information about where the person is being taken,” she said.
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