What to do if immigration officials target your business
January 2018 started off with headlines across California that Immigrations and Customs Enforcement (ICE) was targeting California for workplace raids. The headlines and threats have employers worried about how to manage the federal government requests in the wake of California’s newly enacted AB 450.
What is AB 450?
AB 450 is a series of rules that restrict an employer’s right to cooperate with the federal government absent certain safeguards, as well as provide notice to employees of federal action. Under this law, an employer can’t grant permission to ICE to access non-public areas of its business without a subpoena or warrant. This means an audit letter is not sufficient to grant entry.
Further, should ICE or a related agency provide a letter indicating a Notice of Inspection, the employer must post the notice and translate it into the language the employee normally uses to communicate personnel information to employees, and such posting and delivery must take place within 72 hours of receipt. If there is a collective bargaining unit in place, a copy must be provided within 72 hours to the head of the unit.
Many employers have sought to comply with the new 2017 I-9 forms and avoid potential federal penalties of over $20,000 for knowingly hiring and keeping employed unlawful individuals by auditing and updating paperwork. However, under AB 450, employers are now precluded from re-verifying eligibility of a current employee. If an employer does elect to audit its paperwork for compliance, it can only insure that its forms were completed properly in the first instance. Employers should not go back to employees and ask for updated drivers’ licenses because they expired. An employer can ask for a new driver’s license for other legitimate business reasons, such as the fact the employee drives for the company. Further, if an employee’s right to work paperwork expired, an employer can ask for the updated paperwork, but not complete a full re-verification. Employers will have to walk a fine line between avoiding hires of unlawful individuals and compliance with California’s new laws.
AB 450 imposes penalties for failure to provide any statutory notice as well as failure to comply with the new laws of $2,000-$5,000 for first violation and $5,000-$10,000 for each subsequent violation.
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 need to be issued by a Judge—not an agency. If immigration officials present an agency document, it is not valid for entry. They must have a valid court order.
As noted above, under AB 450, an employer is now forbidden from granting permission for ICE to enter their business in California without a valid subpoena or search warrant to enter the premises, collect documents, detain employees or the like. It is important that employers read the subpoena or warrant to determine the scope, as many times the agents will act beyond the authority that the was granted to them.
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 the state agency should not be questioning employees regarding their immigration status, where they were born or the like. If they start such questioning in unlawful areas, the employer has a right to cease such activity.
I-9 Audits are a Lawful Means for Government 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.
Employers who use E-Verify and have an employee who 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), must retain a photocopy of the document he or she presents. Otherwise, employers are not required to make photocopies of documents, but if they do make photocopies of documents other than those used in E-Verify, they 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 from the Department of Homeland Security giving the employer 72 hours to present I-9 paperwork. 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. As part of this audit, they should not conduct interviews with employees.
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, failed I-9 paperwork 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 must 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 legal counsel. Ask ICE agents 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 and 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 only items 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. However, be mindful that just because they ask to inspect doesn’t mean they necessarily get to inspect. If they don’t have a warrant or subpoena or the warrant or subpoena doesn’t grant them certain rights, an employer can object.
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 individual’s duty to demonstrate a lawful right to be in the United States.
What Do You Do with Your Customers?
What if ICE has just issued a warrant/subpoena during the lunch hours and your business is crowded? What do you do with your customers? This is a grey area. Some believe that the warrant would allow the agency to question customers, although 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 if Raided?
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.
Provide notice to employees in their native language as well as a physical copy of any notice received within 72 hours of receipt. This notice should also be posted so that employees can clearly see it.
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.
- 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.
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, you may wish to continue to employ this particular employee. See the following USCIS handbook for more detailed information: https://www.uscis.gov/sites/default/files/files/form/m-274.pdf.
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 or any other reasons, even if not related, it is best to speak with legal counsel so as to ensure that the decision to terminate is not seen as an action of discrimination or retaliation against an employee.
Berliner Cohen LLP’s experienced employment law attorneys advise and represent employers and managers on a full range of legal issues affecting the workplace, including harassment and discrimination, unfair competition and trade secrets, wrongful discharge, wage and hour issues, and labor disputes. Berliner Cohen LLP also is skilled in representing employers in both State and Federal Class Action cases.
This report was updated and reviewed in 2018 for legal accuracy by Christine H. Long, Esq. at Berliner Cohen LLP