Employers across California are on high alert in response to Immigration and Customs Enforcement’s (“ICE”) recent increase in enforcement activity. Whether auditing I-9 compliance or preparing for ICE’s potential arrival at their place of business, employers must have a plan for addressing enforcement actions to remain in compliance and reduce disruption to their business.
What Is ICE?
ICE is the component of the U.S. Department of Homeland Security (“DHS”) that is responsible for ensuring businesses’ compliance with U.S. immigration laws. These enforcement powers give ICE the authority to, for example, conduct I-9 audits, demand the production of various documents through a subpoena, as well as perform what are commonly referred to as ICE “raids,” during which ICE may conduct searches, seize records, and/or detain individuals under investigation without advance notice.
What Rights Does My Business Have if ICE Arrives at Our Door?
Employers have Constitutional protections under the Fourth, Fifth, and Sixth Amendments with regard to ICE raids. The Fourth Amendment protects against unreasonable searches and seizures by the government. Within the context of ICE raids, a search or seizure may be unreasonable if, for example, ICE conducts a raid of nonpublic areas of an employer’s business without permission or an appropriate warrant. The Fifth Amendment gives all individuals the right to remain silent and the Sixth Amendment provides—among other protections—the right to an attorney in criminal cases.
Are There Any Limits on What ICE Can Do if Agents Come to Our Business?
Assuming a business does not voluntarily permit ICE to conduct a search, there are certain limitations on the scope of ICE raids in light of the Fourth Amendment protection against unreasonable searches and seizures.
Like any member of the general public, ICE is allowed to enter public spaces without a warrant. This is because people do not have a reasonable expectation of privacy in public areas, thus, “searching” or observing these areas is not unreasonable from a legal standpoint. Public spaces include, for example, parking lots, lobbies, and common seating areas. While in these public spaces, ICE agents are free to observe anything in plain view and even approach people who are present in these common areas (including employees) to ask them questions.
However, unlike public areas, ICE agents generally cannot enter nonpublic areas of an employer’s business without permission or an appropriate warrant. Nonpublic areas typically are those which are available only to employees or where non-employees may only enter with permission. Nonpublic areas may be indicated by signage such as “Staff Only” or “Authorized Personnel Only” or by restricted access through locks, keycards, or security similar means.
In light of employees’ privacy interests, California enacted AB 450 which, among other directives, prohibits employers from voluntarily providing ICE access to nonpublic areas without a valid warrant. However, while this prohibition remains codified in the California Government Code, a federal court decision currently prevents California from enforcing it, based on the court’s finding that it unlawfully discriminates against employers who choose to deal with the federal government. Therefore, California may not penalize employers for voluntarily permitting a search by ICE without a judicial warrant.
What Can My Business Do to Prepare?
Depending on the nature of the visit, ICE’s arrival can be disruptive to a company’s business and disorienting for its team. It is, therefore, important for companies to have a plan in place to address the situation in a calm and organized manner.
Self-Audit
Employers should conduct self-audits of their work authorization records or hire a qualified third party to conduct the audit for them. The purpose of the audit is, of course, to ensure the company’s compliance with work verification standards to avoid potential penalties in the event an audit is conducted by ICE.
Keep in mind that California requires employers to inform current employees of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection. The Department of Industrial Relations provides a template for providing such notice on its website.
Designate Private Areas
Businesses should also take steps to clearly differentiate between public and nonpublic areas. As noted above, this can be accomplished by posting signs stating, for example, “Private,” “Staff Only,” or “Authorized Personnel Only,” to name a few. Businesses may also designate these areas as nonpublic by restricting access through locks, fobs, key cards, keypads, or login credentials. Note, however, that the law places substance over form in determining whether an area is public or nonpublic, meaning that the company cannot transform a public area into a nonpublic area simply by posting a sign. Courts determine whether an area is public or nonpublic on a case-by-case basis using a number of factors, thus, signage alone is not determinative of an area’s nonpublic status.
Develop a Response Plan and Train Employees
Companies should develop a plan and train employees on handling ICE raids in a calm and organized manner. For example, businesses may designate a representative to serve as the primary point of contact with ICE and liaison with the company’s counsel. If a search is ultimately conducted by ICE, the same individual may observe the search and take note of both the scope of the search and what was seized.
Businesses should also be mindful of their right to request an appropriate warrant in the event that ICE aims to search nonpublic areas. In this circumstance, companies should work closely with counsel to determine the validity and scope of any warrant that is produced. This step is essential because under some circumstances the warrant may be invalid. For example, a warrant may not be valid if it is not executed timely. Similarly, certain types of warrants, such as administrative warrants, categorically do not give ICE authority to conduct a search, even if they are valid.
It is also critical to train employees to avoid taking certain actions. For example, companies should train their employees to refrain from physically obstructing a search, providing false information, or destroying documents. Fleeing the business is also unadvised, as headlong flight may prompt agents to detain individuals when they otherwise would not have done so.
Visitations by ICE can be unpredictable by their nature. It is critical that companies work closely with counsel to proactively comply with employment verification laws and be prepared to quickly and efficiently determine appropriate responsive action if contacted by ICE.
If you have any questions about preparing for ICE enforcement actions or any other employment matters, contact an attorney at Cook Brown.
