What to do if immigration officials target your business

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What to do if immigration officials target your business – your rights and obligations 2017

In the wake of the recent election, employers and employees alike are confused regarding how an employee’s immigration status may affect the terms and conditions of his or her employment and what employers’ rights and obligations are if immigration officials show up at their business.  The reality is that there are no bright line rules, but there are some best practices for businesses and employers that will aid them as we move forward with the changes brought upon by the change in administration.

The important thing for all employers is to get the facts. There is a lot of speculation and conjecture around the executive order relating to immigration, but it is important to know what is and isn’t the law. Since this is a changing and volatile area it will be important to check back as the rules and policies evolve. 

Who can enter the business to enforce the executive order?

Immigration officers are not permitted to enter a workplace without permission from the owner or manager or without a valid search warrant.  This means that you don’t have to agree to allow immigration officials or the local agency into your establishment unless there is a valid warrant. A warrant will be issued by a Judge – not an agency. So if immigration officials present an agency document it is not valid for entry. They must have a valid court order.

California does have a Labor Enforcement Task Force which member partners include DIR divisions Cal/OSHA and the Labor Commissioner’s Office, the Contractors State License Board, the Employment Development Department, the California Department of Insurance, the Bureau of Automotive Repair, Alcoholic Beverage Control, the Board of Equalization, as well as the California State Attorney General and county district attorney offices. None of these agencies handle immigration. These state agencies may enter your facility at any time to enforce California’s wage and order laws. However, individuals of this state agency should not be questioning employees regarding their immigration status, where they were born or the like. If they start such questioning, the employer has a right to cease such activity.

If immigration officials are permitted entry or have a lawful right to entry, they may question employees about their immigration status. As discussed below, employees have a right to keep silent and refuse to answer questions on this issue.  Employees also have the right to speak with a lawyer before answering any questions.  Employees do not have to tell the immigration officer where they were born, how they entered the country, or what their immigration status is.  However, employees should not falsely claim they are U.S. citizens.

The ACLU has several “Know Your Rights” Guides for immigrants. The pamphlet regarding how to respond to immigration agents can be located at: https://www.aclu.org/know-your-rights/what-do-if-immigration-agents-ice-are-your-door. This may be a good document to have on hand if you have employees that have questions.

I-9 audits are a lawful means to review records

The Immigration Reform and Control Act of 1986 (IRCA) was established to prevent individuals who are not eligible to work in the United States from performing work. The act requires employers to complete an I-9 form for each employee within three days of hire.

If you participate in E-Verify and the employee presents a document used as part of Photo Matching, currently the U.S. passport and passport card, Permanent Resident Card (Form I-551) and the Employment Authorization Document (Form I-766), you must retain a photocopy of the document he or she presents. If you do not participate in E-Verify, you are not required to make photocopies of documents. However, if you wish to make photocopies of documents other than those used in E-Verify, you must do so for all employees, do not pick and choose.

An I-9 Audit is a paper audit. This audit will generally begin with a notice with a deadline to present I-9 paperwork usually within 3 days. The notice will be relative to each employee employed during a certain time period, usually 3 years. They may ask about backup documentation and supporting records.
The agency will then pick up the paperwork and review it and advise the employer of any errors or violations relative to the I-9 forms. Now is a good time to do a self- audit and ensure that all paperwork is filled out completely. The number one violation is incomplete paperwork.

How to Handle U.S. Immigration and Customs Enforcement (ICE)
ICE’s determination to do an investigation of a particular business will be triggered either by a high number of Social Security no match letters, a criminal issue with a particular employee, or by cross referral from another State or Federal agency.

What to do upon immigration officials arrival?

ICE should have a lawful warrant to enter the workplace – they will present it and serve it at the time of their visit. Review the warrant. Ensure it is signed, read the scope of the warrant and what they are allowed to do, and request a copy. Then immediately call counsel. Ask them if they will wait to proceed until counsel is present. 

ICE generally will have the business surrounded in order to capture and detain any employees that are fleeing the premises. Generally they will have all the employees gather in a common area, they will make a statement before questioning employees. This may occur during peak business hours, and as such will be disruptive to your business. However, once they are in, they generally lock the doors so that new customers will not enter. 

Do not hide employees or documents. It is important to be cooperative but not helpful.

What can they inspect?

They can inspect everything outlined in the warrant. They may ask to inspect electronic devices. ICE may also access the entire facility if there is a valid warrant. Therefore, they can break locks. It is a best practice to simply provide access once they are lawfully inside. ICE can copy and/or seize anything including POS systems, hard drives, paper files and the like. If your data is in the cloud, it is important to clarify this, as it may enable you to keep devices in your business.

Generally ICE will want to review Form I-9s in order to verify employee employment eligibility so it is important to make sure your paperwork is in order.

It is best to hand over the records requested but answer as few questions as possible if you are not sure the books and records are in order.

Do you have to answer questions?

Employers and employees can both refuse to answer questions. Further, you can advise employees that they can remain silent, but do not instruct them not to answer any questions. An employee can choose to remain silent until a lawyer is present. If an employer instructs an employee to remain quiet, that is interfering with the investigation.

If an employee chooses to remain silent they may be arrested and detained, regardless of their lawful citizenship status. It is always the individuals duty to demonstrate a lawful right to be in the United States.

What do you do with your customers?

This is a grey area. Some believe that the warrant would allow the agency to question customers, it is unclear whether the warrant would be that broad. It is best to have a manager prepared to handle the situation, the manager or owner should approach the agent in charge and ask whether customers will be questioned. If not, ask if you can please have customers’ bills finalized and paid for so that you can turn your attention to the investigators and excuse the customers. Then immediately finalize all bills, provide to go boxes, apologize to the customers and maintain a calm demeanor.

If the agents indicate customers will be questioned, you may ask where that is provided for in the warrant and make sure that the warrant states that all persons on the premises may be questioned, rather than just all employees. You can ask that the agents handle customers first so as to allow them to be excused.

While you can make these requests, know that they are not rights and they may not be honored.

What does the employer need to do?

Be sure to get business cards from each official that is there.  You may need them later.  Feel free to repeat back your understanding of the process.  If you have questions, ask them then. 

If any official tries to convince you to sign any document, refuse to do so.

Keep a receipt of any property that is confiscated and files that are taken. If you are not offered a receipt, make sure to insist upon one as you will need it to get copies of your files and materials for your operation. It is likely they will have your records for several months.

What are employees rights?

As an employer you can advise your employees of the following things:

  • Employees are not required to and if they have concerns should not answer questions about their citizenship, immigration status, or anything else. 
  • Employees should know that if they do answer questions and indicate they are not a U.S. citizen, they will be expected to produce immigration documents showing their immigration status. It is in the employee’s interest to always carry their documents demonstrating a lawful right to be in the United States on them.
  • Employees should volunteer that they have children, as ICE can exercise discretion in detaining individuals if there are minor children that will be left uncared for in a particular detention.
  • Employees should not lie. It is better to remain silent than to lie.

The safest course of action for employees is to continue with work and/or calmly ask if they are free to leave and not answer any questions they do not want to answer.

Why declaring the business a sanctuary is not the best choice

The label of “sanctuary” has generally referred to something cities have established in order to offer local protections to immigrants living in the U.S. illegally, whether it is barring police from asking citizens about immigration status or refusing to cooperate with federal immigration agents.  Recently, there has been a similar “sanctuary restaurant” movement.  “Sanctuary Restaurants” is a joint project of Restaurant Opportunities Centers (ROC) United and Presente.org in conjunction several restaurants across the United States have sought to establish themselves as sanctuary restaurants.  In general, the movement is a symbolic overture to restaurant workers, employers, and customers who seek a safe place, and the restaurants will do things such as agree to anti-discrimination policies, put up signs in windows that pronounce their sanctuary status, and receive know-your-rights training. 

Given the heavy reliance of the restaurant industry on immigrant labor, it may be appealing for restaurants to designate themselves as Sanctuary Restaurants.  However, the sanctuary movement is amorphous and largely a symbolic reaction to the Trump Administration; accordingly, a sanctuary restaurant designation does not provide workers any additional legal rights.  It is important to remember that restaurants are still private businesses that are subject to workplace laws and regulations and merely designating your restaurant as a sanctuary restaurant will not prevent federal agents from enforcing immigration laws.  Further, identifying your restaurant as a sanctuary restaurant could draw additional attention to your business and make it more likely to be subject to an immigration raid in the future.

What to do if employee presents a new social security card?

An employee may approach you and indicate that he or she has a new social security card and wants you to update your records with the new information.  Though there are a few circumstances in which the Social Security Administration (SSA) will change a person’s SSN for legitimate reasons, including an SSA error or identity theft, the most common reason an employee will report a changed SSN to an employer is because the employee has only recently become legally authorized to work in the United States and the previous SSN was not legitimate. 

According to U.S. Citizenship and Immigration Services (USCIS) guidance, if the employee is currently authorized to work, an employer is not obligated to impose disciplinary action or to report its concerns about the employee’s prior conduct.  You should consider any pertinent company policies, collective bargaining agreements, state laws, or other factors when determining whether to discipline an employee. Assuming the employee had purposely provided false information, you may take disciplinary action up to and including dismissal.  However, as the government does not mandate taking disciplinary action and you may wish to continue to employ this particular employee.  You must make sure that whatever you do, you do not treat the employee differently based on any protected status.   See the following USCIS handbook for more detailed information: https://www.uscis.gov/sites/default/files/files/form/m-274.pdf.

Your focus should be on ensuring that the documentation you currently have is up to date.  This means updating the Form I-9. 

How to handle employees who strike or walk out?

In the wake of February’s “A Day without Immigrants,” during which thousands of immigrants boycotted/went on strike, employers may question how they can handle future occasions during which employees strike or walk out to support immigrant rights. These walk outs implicate employees’ First Amendment Rights to freedom of speech and the right to peacefully assemble. The National Labor Relations Act protects lawful strikes and an employer could be subject to action by the NLRB if they take action against an employee who exercises a constitutional right.

The lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers. The object of a strike and whether it is lawful is not always easy to determine. Such issues often have to be decided by the National Labor Relations Board.

Given the current political milieu and the implication of the rights at issue here, it is advisable that no action be taken against employees who strike or participate in a walk out on these designated days, at least until there is clearer guidance on the issue from the NLRB.

However, an employer is not required to allow an employee time off to participate in such strikes or walks out, and can terminate an employee for failure to come to work.

Non-immigrant employees may wish to support their immigrant coworkers on a scheduled immigrants’ rights day.  Again they have a constitutional right of association and speech. They have no right to use their sick leave days for such solidarity, thus an employer would be within their rights to terminate for such things. However, given that the sick leave authorized by state is a mere 24 hours a year if using the state minimums, there are some advantages of having a happy work force that believes they work for a supportive employer. So while an employer could take action regarding the improper use of sick leave, given employee morale and the importance of the rights at stake, the best course of action would be to let the employee take the time off but remind all employees about the purpose of your sick-leave policy and what constitutes authorized leave under the policy.

​Conclusion 

If you are subject to an ICE visit, if you have an employee who is detained, or you have employees engaging in walk outs, before you decide to terminate such employees for these reasons or any other reasons even if not related it is best to speak with counsel so as to ensure that the decision to terminate is not seen as an action of discrimination or retaliation against an employee.

This report was reviewed for legal accuracy and updated in 2017 by Christine H. Long, Esq. at Berliner Cohen Attorneys at Law.