United States: Beware Of ICE In The Kitchen: The Return Of Worksite Raids

Restaurants – which historically have relied on immigrants for a large part of their labor force – have a new challenge to face when it comes to running their businesses. Since taking office, President Trump and his administration have significantly increased worksite enforcement actions conducted by U.S. Immigration and Customs Enforcement (ICE), including I-9 audits and the return of worksite raids.

  • In January 2018, ICE mounted a large-scale enforcement action against a national convenience store chain (hitting 98 separate convenience stores in 17 states and Washington D.C.) that resulted in the arrest of 21 individuals on immigration-related charges.
  • In April 2018, ICE agents – in a coordinated enforcement action involving federal and state agents – raided a meat processing plant in northeastern Tennessee and took into custody 97 employees on various immigration-related charges.
  • In June 2018, ICE agents arrested over 100 employees of a garden and landscape company in Ohio who were suspected of being in the U.S. without proper documentation.
  • Later in June 2018, ICE agents conducted a worksite raid on an Ohio meat supplier and arrested 146 workers for immigration-related violations.
  • On July 24, 2018, ICE announced the completion of a two-phase nationwide operation by Homeland Security Investigations during which I-9 audit notices (Notice of Inspection or "NOI") were served on more than 5,200 businesses since January 2018. In just the first nine months of the 2018 federal fiscal year, ICE more than tripled the number of worksite investigations over the entire 2017 federal fiscal year.

To be clear, workplace immigration enforcement by the Trump administration is taking a new tack. While still focused on employers and I-9 recordkeeping audits – as under the Obama administration – ICE is increasingly targeting undocumented workers as well as employers who knowingly violate the law. The Trump administration is setting a course more akin to the administration of George W. Bush, which used high-profile worksite raids to deter employers from hiring undocumented workers.

Restaurants, like other service industries with a significant immigrant workforce, have been regular targets of ICE for enforcement actions over the years. But now more so than ever, a commitment to I-9 compliance is required of restaurant employers to limit the potential for "paperwork violations" (ranging from $224 to $2,236 per document) and possible fines for knowingly hiring or continuing to employ unauthorized workers (starting at $559 per employee and running up to $22,363 for repeated offenses).

How Restaurants Can Minimize Their Risks

In light of the new enforcement climate under the Trump administration, restaurants (like all employers) should take several important steps to minimize the risks posed to their businesses and their employees.

  1. Do Your Prep Work – Conduct a thorough review of, and provide training on, the company's I-9 policies and procedures (and other immigration-related issues) to ensure full compliance with existing law. If the company does not have a written I-9 policy, develop and implement a comprehensive policy and I-9 procedures. Perform an internal audit of the company's existing I-9s using appropriately trained personnel and/or a third-party auditor. Consider signing up for the federal E-Verify program to electronically verify work authorization of new hires.
  2. Be Prepared for Visitors – Have a written response protocol in place before government agents come knocking. Designate, and provide training to, points of contact who will interact with ICE agents during a worksite enforcement action (whether a paperwork audit or a worksite raid). Consider what preparations may be appropriate to ensure the continuity of business operations in the event of a worksite raid, including cross-training on key functions, ability to quickly recruit, or having an established staffing relationship.
  3. Recruit a Good Team – A worksite enforcement action certainly can expose the employer (and its employees) to legal liability and monetary penalties. But such events can also substantially damage the employer's brand or reputation, and possibly result in criminal charges (against either the employer or its employees) or even removal from the U.S. The stakes can be quite high. So employers should have a good team consisting of legal counsel, human resources professionals, public relations advisors, and other trusted professionals to address, in a coordinated fashion, the many issues that may arise from a worksite enforcement action.

Employers' Bottom Line:

The trends of increased worksite enforcement actions by ICE, including the arrest of undocumented workers, show no signs of abating. While some of the Trump administration's immigration initiatives and policy changes have been blunted by legal challenges, the same cannot be expected with regard to stepped-up worksite enforcement efforts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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