Being Prepared For ICE Workplace Enforcement Actions

Establish Worksite Enforcement Protocols

• Designate a lead for ICE interactions (C-suite point, onsite supervisor, owner, legal, human resources).

• Train managers and employees on how to respond to ICE visits professionally while protecting both company and employee rights; Remind all employees to verify the identity of anyone claiming to be a law enforcement officer by requesting proper identification. Ask for a copy of the warrant and read it carefully before granting access.If any employee allows ICE or law enforcement to enter, they'll do so. If ICE doesn't have a search warrant, they cannot enter private areas without authorization.
• ICE may enter public spaces without a warrant, e.g., lobbies, parking lots, etc.
• ICE agents may not enter private spaces without either a warrant signed by a federal judge or employer consent.
• Ensure I-9 and compliance readiness, e.g., conduct internal audits of I-9 forms to correct any discrepancies, and, if E-Verify is used, display poster. A "Notice of Inspection" and I-9 audit may be a precursor to enforcement action. Generally, ICE will want to review Form I-9s to verify employee employment eligibility, so it is important to make sure your paperwork is in order.
• Identify "private" areas where the general public doesn't have access with signage ("Authorized Personnel Only" or "Employees Only"). Signage may help with limiting search warrants (search warrants need to be specific), and may preserve Fourth Amendment protection (right against unreasonable searches and seizures: evidence obtained during an illegal search and seizure may be excluded).
• If you're installing security cameras to monitor ICE activity, consider doing so only in areas where employees do not have an expectation of privacy. In Sanders v. American Broadcasting Companies, the California Supreme Court affirmed that employees retain privacy rights in the workplace areas not accessible to the public, reinforcing the need for employers to tread cautiously. Further, California Constitution Art. 1, Section, 1, guarantees rights of privacy — potentially prohibiting the intentional recording or monitoring of private communications without the consent of all parties involved. As to audio recording, turn it off — California Penal Code section 652 prohibits recording confidential communications without consent.
• Provide employees with"Know Your Rights"information, e.g., What to Do if You Are Arrested or Detained by Immigration (National Immigration Law Center), Know Your Rights: If ICE Visits Your Home (American Immigration Lawyers Association), Immigrants' Rights | American Civil Liberties Union (ACLU); Rights-No-Matter-Who-Is-Pres-2016-11-10.pdf (National Immigration Law Center PDF – with cutout "Know Your Rights Card"); Know Your Rights: If ICE Confronts You | ACLU of Northern CA, Know Your Rights: Immigration Enforcement and Warrants | ACLU of Northern CA; Know Your Rights: Local Law Enforcement and Immigration Under the California Values Act (SB 54) | ACLU of Northern CA (ACLU Northern California).

When ICE Comes to Your Workplace

• Ask for names and business cards of the lead agent. If cards aren't provided, record the names and badge numbers of agents that are on site, including any other federal agents that are at your workforce.
• It's okay to ask about the intended process. Be courteous, but don't give consent. Don't be aggressive or hostile – a firm but neutral approach is acceptable, and likely the best practice.
• Ask if there is a search warrant, and if so, ask for a copy you may keep. If a copy isn't provided, ask to take a photo of the warrant. A judge-signed warrant is required to enter non-public areas. In reading the warrant, look for the court where the warrant was issued, make sure the address and business are correct, and review the specific areas where the warrant requires access. Generally, search warrants allow for the search of areas that could uncover the evidence they're looking for. The warrant should list the type of evidence they're seeking, too. An administrative warrant (issued by ICE or the Department of Homeland Security) doesn't authorize entry to private areas. Don't grant access beyond what is legally required.
• If ICE asks to question customers, you may ask where that's outlined in the warrant. You can ask that customers be questioned first – but ICE doesn't have to follow this request.
• Do not interfere with the search. Allow ICE to proceed within the search limits of the warrant, and document if ICE overreaches.
• It's okay to document what ICE agents are doing, but do not block or interfere with the agents' activities.
• If the warrant allows access to a locked area, drawer, cabinet, closets, etc., provide access or ICE will forcibly gain entry.
• If documents are items are seized, ask if you can make a copy before they're taken.
• Do not provide false information. Do not speculate, and do not volunteer information.
• Do not hide employees or assist in their departure. Doing so could lead to a harboring charge.
• Do not destroy documents, including electronic and video documentation.
• Do not retaliate against employees based on the ICE visit.
• The company's onsite representative should call senior management right away and should tell agents something like this: "Our policy is to contact our attorney before proceeding. Will you wait for them?" ICE doesn't have to wait for counsel.
• See also, EmployerGuide-NELP-NILC-2017-07.pdf (National Immigration Law Center)
• California Law Compliance. AB 450 (Immigrant Worker Protection Act), AB 103 (CA AG must inspect ICE detention centers and limits the federal government's ability to contact local agencies to detain noncitizens for purpose of civil immigration custody), and SB 54 (California Values Act) are a series of rules that restricted a California employer's right to cooperate with the federal government absent certain safeguards (a search warrant, subpoena, etc), as well as requiring employers to provide notice to employees of federal action. California law puts employers in the difficult position of being cooperative, but not helpful. The 9^th Circuit overturned much of the State law, but the following remain in place: (a) within 72 hours of receiving a government Notice of Inspection of Form I-9 or other employee records, employers must notify the employee and labor union representative, and, if requested, the employer must also provide a copy of the notice; (b) after receiving inspection result (including timeframes to correct deficiencies), within 72-hours of receipt of the results, employers must give affected employees notice of the result. The 9^th Circuit decision guts much of California's Immigration Worker Protection Act.

Employee Rights

• Employees have the right to remain silent and do not have to answer questions about their immigration status. See, Employee "Know Your Rights" information above.
• Employers may not instruct employees not to speak with ICE, nor can they facilitate hiding or ushering employees away.
• You should inform employees that they have a right to talk with ICE officers, or not talk to them if they like.

After the Enforcement Action

Create a detailed record of the ICE agents, and other law enforcement and supervisors who showed up at the workforce.

• Make a list of anything that was seized.
• Document any statements made by ICE while communicating with the employer representative.
• If employees are detained, coordinate with legal counsel on next steps.
• Make sure all wages owed are paid to detained employees.
• With counsel, consider a communication plan with employees to address concerns.
• Speak with counsel about preserving security camera footage.

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.