The most important thing to know as an employer, you have rights, as do your employees. You also have responsibilities. As California employers, we must comply with both California as well as federal law. But what does that all mean?
First, we need to get educated. And then, we need to make and implement a plan.
THE ENFORCEMENT AGENCIES INVOLVED
Under the Department of Homeland Security, the following agencies have the authority to conduct workplace visits and inspections:
Homeland Security Investigations (HSI) collects and inspects employers’ I-9 Employment Eligibility Verification forms (I-9s) and other paperwork for compliance.
Immigration & Customs Enforcement (ICE) enforces immigration law and can initiate deportation proceedings. ICE agents are not “police.” but they can carry guns or small clubs and may have gear that says “Police” on it. They also often have jackets that say ICE.
U.S. Citizenship & Immigration Services (USCIS) audits employment-related immigration sponsorship.
The Department of Labor (DOL) also has authority to audit I-9 compliance in the context of any other wage and hour audit, but based on the conduct and agenda of the current administration, not sure we will be hearing from the DOL as much in the next four years.
THE VARIOUS TYPES OF VISITS IMMIGRATION AGENTS CAN MAKE
Immigration agents may come to your workplace for an I-9 audit, a raid, or to search for and detain specific people.
What is an I-9 Audit? An I-9 audit is when an enforcement agency comes to your business to check if you followed the rules for obtaining and retaining I-9 Forms. You should be doing internal audits to determine if you have a completed I-9 on every employee and if that form is completed properly (all the correct boxes checked, all the appropriate signatures present). You should also make sure that every employee who is reviewing compliant documents knows what documents satisfy which columns, and how to spot documents that do not appear on their face to be valid. The government has put together a helpful course on this for your employees to review. Here is a link:
https://www.uscis.gov/i-9-central/form-i-9-resources/employment-eligibility-webinars
Do not ask a worker to fill out Form I-9 more than once unless their work permit is about to expire or you have another valid, legal reason. Asking for too many documents or targeting certain employees for extra paperwork for can constitute “document abuse,” and is its own legal violation under the Immigration Act.
You must keep I-9 forms on file for 3 years after hiring or 1 year after the worker’s last day of work, whichever is later. You do not have to keep copies of a worker’s ID or work authorization documents, but if you do, make sure you are doing it consistently for all employees.
What Is an ICE Raid? Raids are when IICE agents go to a worksite unannounced as part of an investigation into an employer. We saw a number of these in 2019 during the last Trump administration. But there are rules that ICE and employers must follow in the event of a raid.
DO NOT CONSENT TO ACCESS WITHOUT BEING PROVIDED THE CORRECT PAPERWORK
Each of the above agencies is required to follow procedures and ensure they have the proper paperwork and authority to enter the premises and conduct a search or an audit. California employers CAN NOT not give permission or voluntarily consent to access without an appropriate warrant or subpoena. You should say “I cannot consent, and I do not consent.” Be vigilant and ensure the agents do not exceed their authorization.
The following is a list of the documents they are most likely to have in their possession.
• Notice of Inspection – this is an ICE/HSI request to present I-9 forms within 3 business days. Contact an attorney before responding.
• Immigration Enforcement Subpoena – this usually includes a request for other documents along with the I-9s.
• Judicial Warrant – this warrant is signed by the judge of a court. It may allow ICE agents to enter private areas or seize documents onsite. Read the warrant. ICE is limited to the scope of the warrant. Do not give consent beyond the scope.
• Administrative Warrant – this usually has “Department of Homeland Security” at the top of the first page and is on Form I-200 or I-205, issued as part of an I-9 audit. If ICE shows you an Administrative Warrant with a specific employee’s name on it:
-You do NOT have to say if that employee is working on that day.
-You do NOT have to take the ICE agents to the employee named on the warrant.• Inventory Receipt. If records are seized, ICE must give the company a receipt to inventory what they are taking.
In the 2019 raids, ICE agents were relatively respectful. From all the stories I have been told, they only presented Notices of Inspection and Subpoenas to produce additional documents. The notices all gave employers a few days to gather the documents. They did not attempt to overstep. But we do not know what the tenor of these current rounds of raids will be. Be prepared for anything.
HOW EMPLOYERS CAN PREPARE FOR ICE ACTIONS
Prepare and Train Key People – Employers should designate an employee, preferably, a manager/executive to be responsible for interacting with enforcement agents. These designated people will do two important things: determine if the agents have the right kind of warrant and deny the agents entry if they don’t. These designated people must be trained NOT to consent to a workplace search unless provided with a valid judicial search warrant.
Ideally, the designated employees/employee will be the one responsible for:
• Immediately alerting legal counsel.
• Inspecting the documentation to ensure the warrant/Notice of Inspection is valid.
• Tracking the names and badge numbers of the agents or officers. Remember that local police and sheriffs can also accompany and act alongside ICE agents. You have the right to demand names and badge names for all officers. Take video or pictures if possible. This is when taking video IS legal!
• Accompanying the agents at all times. At no time should agents be able to wander and speak to employees without you present.
• Ensuring that the agents do not go beyond the scope of their authority and that the constitutional rights of the employees are protected.
Communicate With Your Workforce – Key points to remind your staff in the event of an ICE raid:
• Stay calm and do not run: Fleeing can be seen as suspicious. ICE agents are allowed to engage in “hot pursuit” and to arrest people suspected of violating immigration laws. Do not give them good cause to act.
• Exercise your right to remain silent: Your employees are not obligated to answer questions about their immigration status or personal details, nor should they.
• Ask for a lawyer: They should insist on speaking to an attorney before answering any questions or signing documents.
• Do not provide false information: Lying to authorities can have serious consequences. Any information employees provide to ICE can be used against them.
• Document details: If possible, note the names of officers, their badge numbers, and the time of the raid.
• Know your rights: Employees should know that even if they are undocumented, they still have basic rights during an immigration check.
Steps To Take After ICE Leaves – Make note of the following:
• How many ICE agents were present (inside or outside)? What were their names? Did we take video or photos?
• How were the agents dressed? How were they armed?
• Did the agents make you or your employees believe you could not move or leave?
• Did the agents threaten or mistreat anyone? If yes, how?• If ICE arrests anyone, ask the ICE agents where they are being taken.
• If there is an I-9 inspection, prepare the documents. You can request more than 3 days to produce the records.
• Labor Code Sec 90.2 requires California employers to post a Notice to Employees of I-9 and other immigration records inspections.
Most importantly if ANY of the above occurs – reach out. You all know how to get me or my team at any time. One of my clients joked that she wouldn’t expect me to be available 24/7 . . .but if any of you know me, I probably am. I will be holding at least one webinar on this subject, and I will be sending out the details and links for that. If you need help with putting on programs for your own team or creating the plan I spoke about above, you all know where to find me.
If the fires have taught us anything it’s that we will all get through this together. And we will. Stay strong, resilient, and vigilant.
