Question: What should I do if there is an ICE raid at my business?
Answer: U.S. Immigration and Customs Enforcement (“ICE”) has increasingly targeted California businesses through worksite enforcement audits. For “raids” at the workplace, employers face the difficult task of complying with conflicting state and federal laws or risking a fine of up to $10,000 for each violation. To comply with these laws, employers and their employees need to know how to respond to an ICE visit.
Effective January 1, 2018, California’s Immigrant Worker Protection Act (the “Act”) imposes new duties on employers concerning worksite immigration inspections. Specifically, employers cannot:
(1) voluntarily consent to an ICE agent accessing nonpublic areas of the worksite unless the agent provides a judicial warrant;
(2) voluntarily consent to an ICE agent accessing, reviewing, or obtaining employee records unless the agent provides a subpoena, judicial warrant, or Notice of Inspection of I-9 Employment Eligibility Verification forms (“I-9 Forms”); or
(3) reverify a current employee’s employment eligibility unless required to do so by a memorandum of understanding.
The California Department of Industrial Relations defines a nonpublic area as “one that the general public is not normally free to enter or access,” such as an office or an area clearly designated as restricted to employees. However, federal agents are not required to comply with the Act. Therefore, while neither an employer, nor anyone acting on behalf of the employer, may voluntarily provide consent to grant immigration agents access to nonpublic areas, the Act does not preclude immigration agents from accessing nonpublic areas of the workplace. An employer is not required to physically block or interfere with an ICE agent to show that voluntary consent was not provided.
The Act also requires employers to notify employees of an inspection of I-9 Forms or other employment records by federal immigration authorities within 72 hours of receiving notice of the inspection. The notice provided to employees must be in the language normally used to communicate with them and must contain the following information: (1) name of the immigration agency conducting the inspection;
(2) date the employer received notice of the inspection;
(3) nature of the inspection; and
(4) a copy of the notice of inspection.
Within 72 hours of receipt of the inspection’s results, employers must provide each affected current employee with the inspection results, and give each affected employee a second written notice setting forth:
(1) all deficiencies identified in the inspection results;
(2) the time period for correcting any deficiencies;
(3) the time and date of any meeting with the employer to correct deficiencies; and
(4) notice that the employee has a right to representation during the meeting with the employer.
The second written notice must relate to the affected employee only.
Employers should designate specific individuals who are authorized to respond to immigration enforcement visits, and train those individuals in how to tactfully respond to immigration enforcement visits or calls, and how to identify documents such as subpoenas, judicial warrants, and notices of inspection.
For more information, the California Labor Commissioner and California Attorney General publish a list of frequently asked questions regarding the Immigrant Worker Protection Act, which is available online at https://www.dir.ca.gov/dlse/AB_450_QA.pdf.