How To Prepare For And Navigate ICE Enforcement Actions

With the election of President Trump, we have begun to see the removal of undocumented aliens from the country. Many of our clients are seeing removal operations occurring in major cities being reported daily in the news. We have received numerous calls from clients who are concerned about the possibility of enforcement actions by ICE agents at their facilities. The idea of ICE enforcement actions in workplaces is not new. These actions took place during the Obama administration as well. Here are some tips that may be helpful to concerned employers and their employees.

By preparing in advance and understanding these rights, employers can protect their workplaces while ensuring compliance with the law.

Here are some key tips to help navigate potential ICE actions in the workplace.

• If ICE shows up at your workplace, employees should contact management at their earliest opportunity so that management is aware of what is occurring at the facility.
• If ICE comes to your facility asking for access to non-public areas of your workplace without a warrant, you can deny access to those private areas. Agents may enter public areas of the workplace without a warrant. Employees should not interfere with agents in public spaces, as interference will an ICE enforcement action is a crime and could subject your employees to prosecution.
• If ICE has gone so far as to come to your facility to conduct an enforcement action, they likely already have a warrant. If an ICE agent presents a warrant to search the facility you should not make any effort to resist the search. It is sensible to ask the agents who they are looking for and offer to bring that person to the office to avoid workplace disruption. It is certainly of no value to your organization to have ICE agents randomly roaming through your workspace.
• Keep good attendance records and be sure that you know who is at work. Managers should pay attention to attendance daily. If a raid occurs, agents may or may not inform you of who they have detained. Take attendance again after enforcement action is completed to be sure you know who was taken into custody.
• Prepare now by making sure your emergency contacts are up to date for all employees. If employees are taken from your facility, contact their next of kin to ensure arrangements are made for picking up their kids from school, etc. This also gives the next of kin the chance to contact counsel to assist the detainee if they choose to do so.
• Be sure you have I-9s for all employees and that they are properly prepared. Once employees have been detained, ICE will likely ask for the employees’ I-9s and other employment records. Be sure you are in compliance. Go back and examine supporting documents (if you keep them) to be sure they appear valid on their face.
• Employees who may be detained need to know they can invoke their right to remain silent. They may refuse to sign any documents presented to them by ICE.
• If ICE begins asking authorized workers if they know the whereabouts of any undocumented persons, they should invoke the right to remain silent. Mistakenly identifying someone as illegally working in the United States could result in action being taken against the employee by the person mistakenly identified.

By preparing in advance and understanding these rights, employers can protect their workplaces while ensuring compliance with the law.

About the Authors

Schaun D. Henry is an experienced attorney in the firm’s Labor and Employment Practice Group. He advises employers on issues such as discrimination claims, affirmative action compliance, immigration, and labor relations and defends them before agencies like the EEOC and PHRC, as well as in court. A retired U.S. Army Special Forces Major, Schaun brings a disciplined, strategic approach to his practice.

Langdon T. Ramsburg is an experienced attorney in the firm’s Labor and Employment Practice Group. He advises employers on labor relations, compliance with employment laws, and pension matters and defends them before agencies like the EEOC and PHRC, as well as in court. Langdon provides strategic counsel on contract negotiations and arbitration, helping clients navigate complex legal challenges across industries like municipal government and construction.

About the Firm

McNees Wallace & Nurick LLC is a full-service law firm. The McNees Labor and Employment Group provides strategic representation and counseling to employers for a variety of matters, including all types of employment litigation, collective bargaining negotiations and labor arbitrations, occupational health and safety, affirmative action, unemployment compensation, workers’ compensation, wage and hour regulation, and employee benefits. McNees attorneys strive to partner with employers to develop proactive compliance strategies that help employers avoid costly litigation and other disputes.

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