Labor Unions Fight Immigration Enforcement

Unite Here asks employers to bar immigration agents, not audit I-9 forms

Roy Maurer By Roy Maurer October 3, 2017
Labor Unions Fight Immigration Enforcement

​Labor union organizers are instructing their members to resist worksite immigration enforcement raids. Through contract negotiations, they hope to restrict employers from cooperating with federal immigration agents.   

The union Unite Here is holding training sessions for hotel workers in major metropolitan areas in preparation for possible visits from U.S. Immigration and Customs Enforcement (ICE). The "know your rights" workshops instruct workers "to effectively stonewall ICE agents, emphasizing employees' right to refuse to answer questions or show identification," according to Bloomberg.

Unions for other industries around the country also have hosted workshops, provided legal assistance for vulnerable workers and used collective bargaining to limit employers participating in ICE enforcement actions.

"The Trump administration has shepherded in an inordinate amount of fear for immigrant workers, particularly through the politicization of ICE and misuse of federal immigration resources to target noncriminal immigrants for misdemeanors that are decades old," said Unite Here national press secretary Rachel Gumpert. "With reports of workplace raids by ICE, … it is clear that immigrants in the hospitality industry are at elevated risk, which is why our union is working hard to ensure immigrant workers have adequate protections at their workplace."

Nearly half of the contracts for the 270,000 hotel, casino and food-service workers Unite Here represents expire within the next year. Under model language prepared by the union for future negotiations, employers would be:

  • Required to notify their union representative about employment status requests from ICE.
  • Prohibited from allowing ICE agents onto the worksite without a warrant.
  • Prohibited from conducting internal Form I-9 employment eligibility audits or checking workers' status using E-Verify, except where required by law.

Labor relations attorneys say that such measures are legal, but not recommended for employers who want to show due diligence in compliance with immigration law. "Under the National Labor Relations Act, neither party can force the other to agree to any proposal," said David Pryzbylski, a partner with law firm Barnes & Thornburg in Indianapolis. "If the union asserts a provision, evaluate it first and if not cooperating with ICE or any other federal agency doesn't make sense for the organization, I would respectfully decline the request and articulate the reasons." 

Unite Here's proposed language could be problematic for several reasons, according to experts.

"Conducting routine self-audits helps the employer identify any deficiencies in the process and spot any trends," said Julie Myers Wood, CEO of investigative and compliance consultancy Guidepost Solutions and director of ICE under former President George W. Bush. "Doing self-audits also allows for corrective action and additional training."

[SHRM members-only HR forms: I-9 Audit Checklist]

Showing the completion of internal audits can also help mitigate penalties when ICE does show up, Pryzbylski said. "Merely having [the Unite Here] measures memorialized in a document that ICE might get its hands on will put the employer in an unfavorable position and potentially sour its relationship with ICE. If an employer had a written policy that they will never respond to the [Equal Employment Opportunity Commission (EEOC)] unless subpoenaed for information, I can't imagine the EEOC would react positively to that."

Pryzbylski added that not cooperating with ICE and instead warning a union or employees about an impending ICE action could lead to an employer being charged with obstruction of justice.

On the other hand, the New York City-based National Employment Law Project (NELP), a nonprofit organization that advocates on behalf of workers, says businesses have more discretion in this area than they may realize.

"We know from past experience that immigration enforcement in the workplace can terrorize businesses," said Christine Owens, NELP executive director. "Employers want to be prepared to protect their rights and do what's best for their teams." 

To that end, NELP released a guide available in five languages that outlines steps employers can take to prepare for federal immigration enforcement, employers' rights and responsibilities in those situations, and what employers can do during Form I-9 audits and worksite raids.

NELP explains in the guide that staff should be trained not to interact with ICE agents, and to ask for a warrant to access private areas of a worksite. It also encourages workers to stay calm and not run for exits, and to stay silent and not produce personal documents during questioning.

Sari Long, an attorney with Faegre Baker Daniels, based in Washington, D.C., recommends that employees be courteous and respond to requests for information or clarification promptly, but they "should not provide more information than is requested or allow ICE to inspect documents that appear outside the scope of the Notice of Inspection or subpoena."

The NELP guide advises employers to offer leave to workers identified as undocumented while they apply for work authorization. "Allow them to return to their same positions with full seniority and benefits once they provide their authorization papers," the organization said.

Wood explained that if employers find out an employee has presented a fraudulent document for work authorization, then they should give the employee an opportunity to provide a valid work authorization document. If the worker is not able to, he or she must be terminated. "If the employer does not terminate the employee, it could be fined for knowingly continuing to employ that individual." 

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