In this week’s episode of The Workplace, CalChamber President Allan Zaremberg discusses with immigration expert Kevin Johnson, Dean of the UC Davis School of Law what employers are required to do if Immigration and Customs Enforcement (ICE) officials raid a job site or ask to inspect records.
Under the Obama administration, ICE officials focused primarily on deporting undocumented immigrants who were in jail or prison, and more or less backed off of workplace enforcement. Now under the Trump administration, ICE has shifted more of its focus to the workplace, Johnson says.
Doing business in a state with high numbers of undocumented immigrants, employers in California need to know what to do in case of an ICE raid and how to be prepared.
“Roughly a quarter of [11 million undocumented immigrants nationwide] live in the state of California,” Johnson says. “They are residents of our communities, they attend our churches, they work often in agriculture, the service industries and some in construction. There are some industries that rely pretty heavily on undocumented labor and would have a hard time competing in the global marketplace without that labor.”
Although employers in all industry sectors should know what to do if ICE comes knocking, employers in the agricultural sector, in particular, should be prepared. ICE is likely to focus heavily on this industry, Johnson says, due to the high number of workers located in one place, such as dairy farms and agricultural fields.
Johnson recommends employers have a human resources employee who knows how to be in accordance with federal law and can advise the employer on how to ensure compliance.
Workplace Raids—Warrant Required
Employers are required by law to allow ICE to conduct a raid if a court-ordered warrant has been issued.
“If ICE comes and wants to search a workplace, they have to have a warrant that is issued by a court,” Johnson explains. “That is where the rights…begin and end… If they do have a warrant, then they have to be allowed in the parts of the workplace covered by the warrant.”
Without a warrant, there is no requirement for employers to open the workplace to ICE authorities, he emphasizes. If ICE shows up on a worksite on a “tip”—without a warrant—then it’s up to the employer to decide whether to let ICE inspect the premises.
Johnson also recommends that employers carefully read any warrants issued since the warrant will detail what areas of the workplace are required to be open to ICE.
Although ICE cannot search a job site without a warrant, the agency can ask to inspect records, Johnson explains.
Notice of Inspection
ICE may ask employers to inspect and verify the identity and employment eligibility documents of their employees. ICE may ask for Forms I-9 and other supporting documentation, such as a copy of the payroll, a list of current employees, Articles of Incorporation and business licenses.
The Notice of Inspection requires advance notice and will give employers a short period of time to gather the documents requested. Some people may refer to this practice as “paper raids,” Johnson says.
A notice to inspect employment records requires advance notice, and a physical raid requires a warrant, Johnson stresses.
Employers should know that even if their business is located in a sanctuary city or jurisdiction, federal laws govern immigration, not state or local authorities. All employers must comply with ICE requirements and warrants.
“In the end, even though the state has declared itself a sanctuary state…the federal immigration authorities are governed by the U.S. Constitution and U.S. immigration laws and the state can’t undermine that or interfere with that in any way,” Johnson tells Zaremberg.
When to Seek Legal Help
For employers struggling with how to prepare for a possible ICE raid, Johnson recommends meeting with a lawyer for assistance.
“If you get a notice from ICE, I would talk to a lawyer and find out the best way to present the material, collect the material and do all you can to comply with the law,” he says.
Reform Not in Near Future
Federal lawmakers are at a stalemate on comprehensive immigration reform, and a workable solution does not seem to be coming soon. The dialog, Zaremberg notes, is often driven by states that do not have a stake in whether a solution is passed.
“This state has a large immigrant population, and it’s going to be very much affected by whether there is immigration reform or no immigration reform, whether there are raids or no raids. And our economy, which is quite vibrant, has benefited over time from immigrants and immigrant labor. We as a state really have moved to a better understanding of that economic reality.”