President Trump has signed numerous Executive Orders pertaining to the United States’ Immigration policies within his first few days of office. The President has declared a national emergency at the southern border, which allows for federal funding to target border security. It also includes plans of mass deportation aimed at undocumented immigrants. With the United States vowing to operate the “largest domestic deportation operation in American history,” many individuals and employers are nervous about what is to come. Below is a discussion on how employers can handle potential Immigration and Customs Enforcement (ICE) raids in the workplace to maintain the integrity of employee rights, while also complying with federal demands.
What is an ICE Raid?
The primary purpose of an ICE raid is to detain undocumented individuals working for employers. Typically, ICE agents arrive at the employer’s workplace with a list of individuals that must be detained based on warrants, immigration violations, or other priorities. Other types of raids may target industries where a high volume of immigrants commonly work, such as restaurants, construction, or agriculture. Raids are unannounced, so employers will not get prior notice from ICE. Due to the abruptness of these raids, it is critical for employers to take steps not to violate the privacy protections afforded by employees when complying with ICE.
Can ICE Agents Raid a Private Workplace?
ICE agents are free to enter the public area of a business, such as a parking lot or lobby. However, to enter a private organization, the agent must have a judicial search warrant signed by a United States District Court Judge. If no such warrant is present, ICE agents need the employer’s consent to enter a private workplace.
Employers can ask to see the warrant, read it, and request a copy of it. While a judicial warrant will give agents the right to enter the premises, the warrant does not provide them blanket permission to search wherever and whomever. The judicial warrant must either describe the person or specific locations to be searched. Thus, understanding the scope of the warrant is critical.
Are Administrative Warrants Enough for a Raid?
An administrative warrant, those issued by an agency such as the Department of Homeland Security or ICE itself, will not grant agents access to a private workplace. To enter the premises, ICE agents would need permission, which can be denied. If presented with an administrative warrant, employers do not have to disclose if the employee is working that day, nor do employers have to take the agent to the named employee.
While an administrative warrant can prevent an agent from entering the premise to conduct a search, it does not prevent agents from stopping, questioning, or arresting individuals named in the warrant, in public areas.
What Are Individual Rights During a Raid?
Similar to search warrants administered by local law enforcement, employees should know that they have the right to remain silent. It is important employees know they do not have to speak to ICE agents, nor do employees need to let ICE enter the premises. Instead, employees can tell agents they must speak with the employer.
Even if an agent asks an employee about their immigration status, that employee should know they have the right to remain silent. Employers can also provide notice that employees do not have to answer questions about where they were born, where they live, how they entered the U.S., or their date of birth. Above all else, it is critical that employees understand that they need to remain calm and not run away.
Employers are allowed to have members of their staff follow each agent around the property. This is to ensure the agents are complying with the scope of the judicial warrant.
What Happens After a Raid?
Employers are encouraged to immediately document what occurred during the raid. This may include documenting the duration of the raid, how many agents were present inside the property, whether the agents were armed, how they were dressed, whether agents mistreated employees, and if the agents attempted to restrict anyone’s movements. Any additional requests or responses from ICE should be managed by legal counsel.
What if an Employer Gets Audited?
With I-9 audits, ICE will typically provide three days’ notice before initiating a business inspection. This gives employers only three days to prepare and produce I-9 forms, which must be available upon request. ICE may also request supporting documentation, such as passports or work authorization papers.
Now is the ideal time to conduct internal I-9 audits. Internal audits can identify and correct any discrepancies or missing information, such as mismatched document numbers, expired work authorization papers, unsigned, undated sections, or other incomplete parts of the I-9 form.
Takeaway
With ICE raids already being conducted in many states, employers can be prepared for the possibility of ICE showing up to their workplace. It is critical employers and employees understand their rights and obligations during a raid. Proactive internal audits and preparation can help mitigate potential risks, while ensuring compliance with federal regulations and safeguarding the rights of all employees.