ICE Raids, Audits and Inspections: Management Should Carefully (!) Review Its Rights and Obligations

Employers remain targeted in the nationwide immigration debate.   Forty years after Congress declared that employers would not be “gatekeepers” – adopting an I-9 process requiring only that documents appear valid to be accepted – federal authorities have yet to create any reliable employment authorization verification system.  The confusion this creates, following decades of inconsistent federal policy and enforcement, leads many employers to seek some reliable guidance given recent increases in ICE raids, immigration audits, and federal prosecutions.

Review Advice Carefully

When weighing advice and options, however, management must carefully balance its own and employees’ rights against authorities’ ability to inspect workplaces.  This is even more important when searching many resources now available online.  Much of this advice is sound, including some printed information sheets employers can provide to employees.  But other advice is not safe or appropriate: for example, one site suggests that employers “train all workers to NOT interact with ICE agents” and that workers “should say nothing [or] ‘talk to my employer’” if questioned.   That is bad advice, as prohibiting individuals from interacting with authorities – or reporting potential legal violations – is a quick route to retaliation claims or even a federal obstruction prosecution.

We recommend that employers adopt a policy addressing all access by law enforcement or government officials (whether immigration, safety, or labor-related). The policy should cover several important factors:

• Stating that no law enforcement representative or other government official is entitled to enter any portion of the premises not generally accessible to the public (such as public parking lots, lobbies, sidewalks and reception areas) without a court-issued (not an 'administrative') warrant. 

• Noting that no law enforcement or other government official is entitled to view documents or other information not already accessible to the public without a court-issued warrant. 

• Directing employees confronted by law enforcement or other government officials without a court-issued warrant to note that they are not authorized to permit access to non-public areas or to provide any non-public information without express permission from specific management representatives.

• Reminding employees that they should never physically interfere with a law enforcement representative or other government official and should always comply with any court-issued warrant presented to them for access to the premises or information. 

• Affirming that the policy does not prohibit employees from discussing wages or other terms and conditions of employment with any person, including government representatives.  

A past presentation covering government access to the workplace can be viewed by clicking here.

California Limits Access and Requires Notice to Employees Before Inspections

California employers should also be familiar with the state Immigrant Worker Protection Act, which prohibits businesses from allowing federal immigration agents to enter non-public areas without a warrant.  Under the law, employers may not allow access to employment records, including I-9 forms, unless ICE has issued a Notice of Inspection (which provides at least 72 hours’ notice before ICE can demand access to records).  While these "access" restrictions have been challenged by the federal government, the law also imposes "informational" requirements that:

• Once a Notice of Inspection is received, the employer must post a notice to all current employees informing when the inspection will occur and the agency demanding the inspection.  This notice must be in any language usually used to communicate with each employee, posted within 72 hours of receiving the Notice of Inspection, and allow employees to receive a copy of the federal notice.  It must also be provided to any union representing employees.  A model notice is published by the Department of Industrial Relations here. 

• If the employer receives notice of any irregularities after the inspection, it must give a copy of relevant parts of the results to each affected employee (and their union, if any) within 72 hours.  The employer must also notify the employee of any meetings scheduled to resolve the issues.

Failure to comply with any part of the law can result in up to a $5,000 fine for the first and a $10,000 fine for subsequent violations. 

Train and Be Prepared!

The current environment creates serious problems for employers.  First, like other law enforcement, ICE officials can be intimidating.  Employees are likely to face pressure to allow immediate access to records or non-public areas, and even threats that interfering with ICE can be a federal crime.  This is especially troubling for industries with seasonal employment, such as agriculture or ski resorts, who regularly employ a high percentage of seasonal migrant labor frequently targeted by ICE.  Training employees to be prepared for ICE visits is essential to avoid violating the new California law under pressure from federal agents.  Second, employers must now navigate competing state and federal requirements – such as whether to reverify an employee upon learning that documents could be falsified, or after receiving benefits or Social Security Number no-match results – each of which carries significant penalties.

California employers are likely to remain caught between state law and aggressive federal immigration policies for the near future.  Knowing each set of requirements, and preparing/training for ICE inspections, remains the most effective way to navigate them.