/>iWith each new presidential administration, prognosticators attempt to forecast coming enforcement priorities. President-elect Donald Trump’s return to the White House is no exception, and theories abound regarding the manner and degree of changes his inauguration will bring. While such predictions vary in conviction, one anticipated change seems almost inevitable: a significant increase in the number of worksite investigations initiated by Immigration and Customs Enforcement (ICE). As the new administration prepares to take office, employers should expect a shift in immigration policy and enforcement tactics and prepare for the impact on employees and the company.
Background
The Immigration Reform and Control Act (IRCA) of 1986 requires employers to verify and document the identity and work eligibility of everyone they hire. Applicants and employees without proper documentation are subject to detention and removal. Companies employing undocumented workers may face civil and criminal penalties.
How does ICE find out about a company’s undocumented workers? Typically, ICE agents enter a worksite, which the agency refers to as “worksite enforcement.” In common parlance, however, this form of enforcement carries a different label: a raid.
ICE dramatically increased worksite enforcement during the first Trump administration. Between fiscal years 2017 and 2018, worksite enforcement investigations increased by 405%, and worksite-related arrests — both criminal (506% increase) and administrative (887%) — surged.
These numbers are particularly significant when considered alongside Thomas Homan’s recent appointment as “border czar” in the new Trump administration. Homan has since indicated his plans to return to an era of heightened worksite enforcement.
Forms of Worksite Enforcement
ICE can enter nonpublic areas of a worksite for limited purposes, including executing warrants, pursuing a fleeing suspect, and responding to emergency situations where they have probable cause to believe a crime has been committed and relevant evidence may be destroyed.
ICE also has statutory authority to serve employers with a Notice of Inspection (NOI), demanding the production of documents such as historical lists of workers with dates of hire and termination, payroll and tax records, company ownership information, staffing vendor information, Employment Eligibility Verification Form I-9s, and any copies of employee documents supporting identity and authorization. If you get an NOI, you must produce the requested materials within three business days, after which ICE agents can review those materials onsite.
Further, ICE may enter a worksite with the consent of an authorized individual, typically the property owner. Obtaining consent is the simplest and most effective means for ICE to enter a worksite. With the anticipated enforcement surge, we expect ICE agents will seek to obtain consent through one of the following means:
- Requesting that the property owner provide consent before ICE arrives onsite.
- Obtaining detainer warrants — which are not issued by a court but authorize ICE to detain undocumented workers — and requesting consent to enter the site to execute the warrant.
- “Piggybacking” on investigations made by other federal or state agencies, including OSHA and the Department of Labor Wage & Hour Division, when those agencies conduct investigations and request consent to enter.
In each situation, individuals interacting with law enforcement agents are understandably hesitant to decline to cooperate. Experienced agents understand and often exploit that hesitancy.
How Can Employers Prepare?
An estimated 14 million undocumented immigrants live and work in the U.S. Immigration-related officials will likely target industries with a high share of immigrant labor, including manufacturing, hospitality, and construction. However, during the first Trump administration, diverse businesses, including a bakery, an electronic repair company, a chain of gas stations, and a tent rental company, were affected by worksite enforcement operations.
With less than two months before inauguration day, employers across industries 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, including:
- Train Your Frontline Personnel. Ensure that the people who will first see arriving ICE agents, including security guards and receptionists, know how to respond. 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.
- Establish Clear Policies. Develop protocol for senior management and in-house counsel to follow when ICE, or any government agency, arrives, including contacting legal counsel and, where appropriate, monitoring the agents’ compliance with warrants. By adopting relatively straightforward policies, employers can drastically reduce the possibility that such visits spiral out of control and negatively impact the company operationally or legally.
- Evaluate Compliance Risks. Review the measures you have taken to ensure your employees are properly documented. If you have outsourced I-9 compliance, check your providers’ processes. If you have subcontractors onsite, make sure they have appropriate systems in place to ensure legal compliance. As part of this effort, pay particular attention if you rely on temporary staffing agencies – a common source of worker documentation issues.
- Ensure I-9 Compliance. Implement I-9 compliance policies, conduct regular internal audits (and think about whether those audits should be privileged), and retain employee I-9s as required by law. Implementing protocols to ensure that all records are accurately maintained can help employers preemptively address areas of potential scrutiny.
While some degree of uncertainty exists about the full nature and scope of the Trump administration’s broader policy agenda, ICE enforcement efforts are a clear priority. Companies that understand what’s coming will be best equipped to respond in a manner that minimizes operational disruption and legal exposure.
