Recently ICE raided a Texas business, Load Trail, after ICE “received information that the company hired undocumented immigrants who used fraudulent identification documents.” Load Trail is a family owned company with over 500 employees on staff. The critical thing to note is ICE is acting more aggressively and only requires mere suspicion of immigration violations in order to act. In this new environment, it is important businesses understand their rights and obligations when facing an ICE raid.
HOW TO PREPARE AND STAY PREPARED FOR INTERACTIONS WITH ICE
First, create a plan and practice that plan, like you would any other emergency drill, to help you prepare and know what to do and say. Next, understand what areas of your business are PUBLIC and indicate which areas of your business are PRIVATE by using signs. Anyone, including ICE agents, can enter the PUBLIC areas of your business without permission. Public areas are those you freely allow members of the public to enter. For example, dining area in a restaurant, parking lots, lobbies, waiting areas. No one can enter a PRIVATE area of your business without permission or a JUDICIAL WARRANT. Examples of how to mark areas as private include using a sign that says “private” or “employee’s only” and “Staff only.” Having policies in place that no member of the public or visitors can enter without permission and keeping the doors to that area closed and/or locked. Without a judicial warrant SIGNED BY A JUDGE that says “U.S. District Court” or indicates a state court at the top, ICE can’t enter the private areas of your business without your permission
Then, ensure your I-9 compliance programs are in place, up-to-date, and followed. It’s a good idea to keep your I-9 forms separate from personnel files because it is likely ICE will attempt to view the private information in those personnel files if the I-9 forms are kept with them. Be sure to complete I-9 forms if any are lost or missing. You can use payroll records to ensure you have all I-9 forms required for current employees or prior employees. Train staff and managers on how to complete an I-9, and what actions they should take when they are made aware that an employee may not be authorized to work in the U.S. Conduct regular internal I-9 audits and remedy identified errors and have outside counsel conduct periodic I-9 audits as well. You do not have to keep copies of a worker’s ID or work authorization documents. It usually makes sense to have a professional review your I-9 forms and make sure you are in compliance.
Additionally, Businesses should include instructions in their general policies and procedures manuals that address circumstances such as visits from ICE agents. Such a protocol should cover:
Designate a primary point of contact by asking one or two volunteers who would be comfortable interacting with ICE to serve as your primary points of contact, the primary point of contact would be responsible for asking to see a warrant and informing ICE that it doesn’t have permission to enter the areas of your business that are the designated private areas of your business;
Train before a potential visit from ICE to inform all employees about how to react to enforcement agents and to designate the farm spokesperson;
Instructions to obtain the agents’ and auditors’ names and contact information (the instruction should explicitly note that other than a formal greeting, getting this information must be the only communication or exchange between the employees and the agents); and
Have an attorney available should you need immediate aid.
Additionally, train your employees NOT to allow ICE agents to enter your business without permission from you or your designated ICE spokesperson. For example, training employees to NOT interact with ICE agents and to state “I can’t give you permission to enter, you will have to talk to my employer.” You may also train your employees to report any interaction they might have with ICE to you or someone designated as your primary point of contact.
Moreover, inform your employees of their right to remain silent and their right not to speak with ICE agents. Attempting to inform your employee of this DURING a raid might be seen as attempting to obstruct the raid by ICE agents. That’s why it’s important that employees know this ahead of time.
CONSEQUENCES OF NOT BEING ORGANIZED AND PREPARED FOR ICE ENCOUNTERS
Employers may be subject to significant public censure, criminal charges, and civil penalties for IRCA violations. Violations could include knowingly hiring or continuing to employ workers who are not authorized to work in the US, requiring employee payment of an indemnity bond, or paperwork violations, including errors in completing the I-9 Form.
If ICE decides you did not follow the Form I-9 rules, you may face either an order to stop hiring people without valid work permits and/or civil and criminal fines and penalties. So be prepared.