HR Should Prepare Now for Workplace Immigration Raids

Experts believe that HR professionals should be prepared for an increase in worksite immigration enforcement, including the potential for workplace raids, after the Trump administration took office in January. U.S. Immigration and Customs Enforcement (ICE) has moved quickly to step up efforts targeting undocumented immigrants across the U.S.

“U.S. employers—particularly those in the manufacturing, food processing, agricultural, construction, and hospitality industries—should immediately prepare for ramped-up government immigration enforcement in the workplace,” said Robert C. Divine, an attorney with Baker Donelson in Washington, D.C., and Chattanooga, Tenn.

He added that affected employers may have to deal with a sudden loss of workers in addition to possible administrative and criminal penalties.

Workplace raids occur when ICE suspects a business of employing undocumented workers. They are typically unannounced and include the seizure of all relevant documents, including payroll and employee records, I-9 forms, bank records, and tax documents. If unauthorized workers are discovered onsite during a raid, they can be arrested.

“Employers should implement preparedness plans with the help of immigration counsel so that employees know what to do in the event of an ICE visit, and those employers who do experience a visit from ICE should contact their counsel immediately to ensure that proper paperwork authorizing an inspection is in place and any inspection is conducted legally,” said Nina Pelc-Faszcza, an attorney in the Hartford, Conn., office of Shipman & Goodwin. 

The sudden loss of workers, files, and technology such as computers and phones can absolutely undo a business, Divine said.

“Sometimes, the government prosecutes employer owners and managers on charges including harboring and trafficking unauthorized workers, mail and wire fraud, document fraud, and tax evasion,” he added.

Knowingly hiring undocumented workers can lead to fines of up to $5,579 for first offenses and up to $27,894 per worker for repeat offenses. Managers and business owners can face up to 10 years in prison and up to $250,000 in fines for harboring undocumented workers. Employers can be debarred from federal contracts.

“Employers should consider measures that could dramatically reduce the disruption that an ICE worksite enforcement visit can cause and the potential exposure that may result from violations,” said Lily Rucker, an attorney in the Nashville office of Bradley.

Have a Plan  

Preparing for a potential enforcement visit from ICE is key, experts said.

“Ensure that the people who will first see arriving ICE agents, including security guards and receptionists, know how to respond,” Rucker said. “Relatively simple training and the creation of a short cheat sheet to guide those individuals will help ensure that agents’ arrivals trigger a prompt and proper response while reflecting the company’s desire to cooperate without compromising its legal rights.”

Kripa Upadhyay, of counsel in the Seattle office of Buchalter, said that a manager or executive should be designated responsible for interacting with enforcement officers. The designated person would immediately alert legal counsel, determine if the officers have the right kind of warrant, and accompany the officers during the inspection.

“At no time should agents be able to wander and speak to employees without you present,” Upadhyay said.

HR should adopt clear policies for enforcement visits, Rucker said: “By adopting straightforward policies, employers can drastically reduce the possibility that such visits spiral out of control and negatively impact the company operationally or legally.”

Upadhyay said workers should be reminded to stay calm, not to run for the exits during a raid, and also not to provide false information to officers.

“The best way for employees to protect their rights is to stay silent and ask for an attorney,” she said. “All employees have this right. Employees do not have to hand over any IDs or papers to ICE.”

Rucker recommended that employers ensure compliance with the Form I-9 employee eligibility verification requirements and take measures to ensure workers are properly documented, including conducting internal I-9 audits.

“If you have subcontractors onsite, make sure they have appropriate systems in place to ensure legal compliance,” she said. “Pay particular attention if you rely on temporary staffing agencies, a common source of worker documentation issues. Implementing protocols to ensure that all records are accurately maintained can help employers pre-emptively address areas of potential scrutiny.”