By Oregon Restaurant and Lodging Association,
With no sign that U.S. Immigration and Customs (“ICE”) enforcement and removal operations are slowing, it is wise for employers to be aware of their rights and responsibilities should ICE show up on their doorstep, particularly in trades more likely to be targeted, like agricultural fields or the hospitality industry.
How to Prepare Your Workplace in Case ICE Decides to Perform a Search
Because ICE is prohibited by law from entering a private space without a judicial warrant or consent, it is prudent for businesses to clearly delineate what portions of a workplace are considered “private,” and which areas are “public.” Of course, lobbies and customer areas—those places the general public is allowed to enter for purposes of making a transaction—are going to be considered public. However, break rooms, offices with doors that can be closed, and other areas where a reasonable expectation of privacy exists should be marked with signs indicating their private nature, such as “private” or “no trespassing” signs. Without such markings, ICE agents may be able to look in such areas when executing a valid judicial warrant.
Because the owner may not always be on property when an ICE agent arrives, it is a good idea to appoint a representative for the organization, and an alternate in the event the representative is not on shift at the time of the enforcement action. The designated representative (and the alternate) should be trained to identify a judicial warrant (as distinguished from an administrative warrant, which does not carry the same weight or allow entry into non-public areas). They should also be instructed on how to interact with ICE agents, including what behavior is appropriate and what is not.
In addition to heightened training for the representative and the alternate, businesses can remind all employees that they do have the right to remain silent if questioned by an ICE agent. No employee is required to disclose their native country or reveal the location of another employee on shift and knowing that beforehand can be helpful.
What Can and Can’t an Employer Do if ICE Shows up on Their Premises?
When agents arrive, they often will read the warrant out loud before beginning their search. The designated representative should pay attention to and listen attentively to the reading of the warrant, and should then ask to see the document to confirm it is a judicial warrant, and to gauge the scope of the warrant. The representative will hopefully be trained to know the difference between an arrest warrant and a search warrant, because those are different objectives and will largely determine where the agents are permitted to go without permission, and what they can do in those areas. The designated representative should make clear that the business is not consenting to entry or search of areas outside the scope of the warrant (or communicating that the designated representative does not have the authority to consent to entry of those areas).
The designated representative (or the alternative in the representative’s absence) may follow the agents around the premises while they conduct their search. The representative can also take pictures or videos to document the search, provided they do not interfere with the agents’ activities. Other employees may similarly document the search by taking pictures or videos if allowed by the employer.
But no matter what, the quintessential instruction should be that no employees are to interfere or impede federal agents during an enforcement action. Employees should not block access to areas, barricade entryways, or engage in any other behavior that could be construed as interference (such as helping an employee evade ICE). Otherwise, in addition to making a larger scene in front of customers, such actions could come with significant consequences for the business.
What About Less Intrusive Forms of Immigration Enforcement: The Form I-9 Audit?
Other than a physical presence onsite, Immigration and Customs may engage in less disruptive means to gauge whether the business is employing individuals who are not authorized to work in this country. This typically takes the form of an audit of the business’ Form I-9 records. If you receive a Notice of Inspection, you will have three days to provide your Form I-9 records, as well as any other records requested. Oregon requires most employers to inform employees within 3 business days of receiving notice of an upcoming inspection, so you should ask your employment law attorney whether this applies to your workplace once you receive a Notice of Inspection.
If any violations are discovered, employers will generally be given time to make corrections, depending upon whether the errors are “technical” or “substantive,” and employers would be wise to engage legal counsel to ensure the fixes are compliant with applicable law. Fines could also be levied, as well as criminal penalties where employers have a pattern and practice of employing workers who are not authorized to work in this country.
As a preventative measure, employers may consider conducting an internal audit (or engaging legal counsel to assist in an audit) to ensure their Form I-9 documents are complete and error-free and, if not, taking appropriate steps to remedy the situation before a Notice of Inspection is received.
Disclaimer: Articles featured on Oregon Report are the creation, responsibility and opinion of the authoring individual or organization which is featured at the top of every article.