Under President Trump, the U.S. Immigrations and Customs Enforcement agency (ICE) has received, by executive order, new powers and resources. Almost immediately, there was a corresponding jump in arrests and deportations. Workplace raids have also increased, becoming a regular occurrence in Michigan.
For Michigan employers, this has understandably caused significant concern and worry. Not only is there the potential for criminal charges in the wake of an ICE enforcement visit, these events tend to receive significant media attention and can result in reputational harm for a business.
Michigan Employers Should Anticipate an ICE Visit
ICE never announces when agents will visit a workplace. It happens suddenly and without warning. Even so, Michigan business owners, particularly those in sectors that routinely hire undocumented workers – hotels, restaurants, agricultural operations — should take steps to prepare for these increasingly likely events. They include:
- Having an I-9 for every employee. While we understand that employing undocumented workers is unavoidable for many businesses, it does put an employer at legal risk. For this reason, employers should have a completed I-9 for every employee within three days of their start date.
- Maintaining accurate records. Should ICE visit a business, the agents will request documentation that shows all of the company’s employees have the right to work in the United States. Employers should ensure this information is kept current and easily accessible. This can go a long way to satisfying ICE that there are no undocumented workers employed by the business.
- Developing procedures for an ICE visit. Companies should have policies and procedures in place for every step that should be taken if ICE visits. This includes designating specific roles and responsibilities for the supervisors, managers and owners who will interact with agents. Procedures should also be developed around the exact documents that can be volunteered to ICE, and which information can legally be withheld.
Having all of this in place in case of an ICE visit also has the advantage of allowing business owners to respond in an efficient and informed way. Having a procedure to follow may also reduce the stress and anxiety these events can undoubtedly cause for both employers and workers.
Steps to Take During an ICE Raid
Business owners have certain rights if and when ICE conducts an enforcement visit, as well as actions they may take to protect themselves and employees. This includes:
- Asking for a warrant. By law, ICE must have a warrant to raid a business and should produce it if asked. Some employers may be reluctant to make this demand out of fear it will lead ICE agents to question whether they are hiding something. It is their right, however, and is a reasonable request. It should be done before agents are given access to private property.
- Holding ICE to the scope of the warrant. The warrant obtained by ICE will include strict parameters for the visit. Employers should read through the warrant before allowing access to private property so they can understand exactly what the agents have permission to do on the premises.
- The right to call legal counsel. One of the first things an employer should do in the case of an ICE raid is call experienced employment counsel. Ideally, this is a lawyer who has helped the employer develop the policies and procedures outlined above and has an understanding of the business. He or she can interact with the ICE agents and advise on what they may and may not do under the law.
- Limits on who can consent to a search. All employees should understand that only the employer can consent to an ICE search of private property. If confronted by ICE, workers do not have to give them access and may, in fact, ask agents to remain outside the business until the employer grants access.
- The right to not answer questions. An employer does not have to answer questions during an ICE raid, and neither do employees. Both can refuse to answer all questions, even if they seem inconsequential.
- The right to assist detained employees. Employers also have the right to assist any employees detained by ICE. They may request the location and contact information for the detention facility where the employees will be held. Employers can also hire legal representation for detained employees.
An ICE raid can be a traumatic event for both employers and employees. Taking steps to prepare for an enforcement visit, and knowing your rights as an employer should one happen, can help mitigate potential liability. We also advise meeting regularly with employment counsel to review policies and procedures.