Preparing for ICE at Work: What California Employers Need to Know

Amid large-scale deportation protests across the country, President Donald J. Trump recently reinforced his commitment to “delivering the single largest Mass Deportation Program in History.”

As the administration continues to expand deportation efforts in Los Angeles, California employers should prepare for possible encounters with the United States Immigration and Customs Enforcement (ICE) Agency. Some measures employers can take before or during federal deportation agent visits include:

I-9 Review

Federal agents at ICE often audit I-9s to confirm whether employers correctly verified the employment authorization and identity of employees. The agency must issue a Notice of Inspection (NOI) at least three business days before conducting an audit, and employers must notify all current employers within 72 hours of receiving the notice.

Employers should conduct internal I-9 audits to identify and correct any errors, thereby avoiding financial liability if ICE were to conduct an audit and find a mistake. Employer guidance for conducting I-9 audits is available on the ICE website.

Per the guidance, employers should:

• Identify the purpose and scope of the audit.
• Maintain transparency with employees and communicate that an audit is happening.
• Make corrections properly. The individual making the change should cross out the error, enter the correct information, and initial it with the date of the change.
• Keep a written record of when the audit occurred, who was involved, and what corrections occurred.
• Keep forms separate from personnel files for quick access.

Employers should not:

• Directly ask any applicant about their immigration status.
• Base an audit on employee national origin or citizenship status.

Employers must keep an employee’s I-9 form for three years after date of employment or one year after the termination date, whichever comes later.

Preparing Employees

Employers can provide employees with readily available information to prepare for potential interactions with ICE agents. Develop clear procedures for managers and supervisors to deal with this federal agency.

Designate a point of contact who directly communicates with ICE and determines who needs to be alerted when ICE is present. Train employees to remain silent and to deny consent for ICE to access private areas. Instead, employees should instruct agents to speak directly to the designated point of contact.

Employers should understand employee rights when dealing with immigration agents. In California, the Immigrant Worker Protection Act requires employers to follow specific rules when ICE visits the workplace.

Responding to ICE in the workplace

If ICE ever visits your place of business, consider multiple actions. Employees, of course, should follow the plan created by employers as noted above.

If the primary contact person is not legal counsel, contact legal counsel immediately. The point of contact should ask ICE agents the reason behind their visit and find out if the agency is there to speak with an employee, carry out a warrant, or conduct an I-9 audit.

Does ICE need a warrant?

Employers can inquire whether the agent has a judicial warrant signed by a judge allowing the agent to enter any private workplace area. The agency does not need a warrant to enter public locations such as lobbies, parking lots, or a restaurant’s dining room. A “private” sign can designate nonpublic areas.

Only a judge can sign a judicial warrant that allows federal agents to enter private workspaces. The agency can only issue and sign an administrative warrant – these say “Department of Homeland Security” on them, and do not grant ICE the authority to enter a private workspace.

Employers should immediately request and inspect the warrant to confirm its scope and legitimacy.

What should employers do during an ICE raid?

If agents have a judicial warrant, employers must cooperate without interference or obstruction but should still contact legal counsel immediately. No employee should run or hide, as doing so may be perceived as a violation of the law.

Employers are not required to communicate with or assist ICE during a raid. They should observe the agents to ensure they comply with the warrant’s terms.

What happens if ICE attempts to arrest or detain employees?

The agency should not automatically arrest or detain employees in a public area without a warrant or probable cause. If ICE attempts to detain or question a worker, the employee should remain silent and request an attorney. Employees do not have to provide the agency with any documents during the detention or questioning.

If ICE arrests an employee, the employee has the right to remain silent and to contact a lawyer. The employer and employee do not have to provide identification, sign any document, or consent to any search.

What should employers do after an ICE raid?

Again, employers should contact at attorney immediately. Employers should also document what they observe. Note or record the following information:

• How many ICE agents were present?
• The sequence of ICE’s actions during the raid.
• What, if anything, did the agents take?
• Whether or not the agents respected the employees’ legal rights.

Employers should also communicate with their employees about what occurred. As noted above, if ICE conducts an I-9 audit, Labor Code Section 90.2 requires employers to notify employees within 72 hours of receiving a Notice of Inspection.

Final Thoughts

As interactions between employers and U.S. Immigration and Customs Enforcement increase employers should prepare employees for a range of possible immigration enforcement scenarios. It is best if all parties – employers and employees – know how to properly handle an ICE visit.

Employers with questions regarding state and federal employment laws should consult an employment attorney for assistance.

Sue M. Bendavid is the Chair of our Employment Practice Group.