An Immigration and Customs Enforcement (ICE) raid can devastate a company and its employees. Unfortunately for employers, President Trump has dramatically increased ICE raids. According to the Des Moines Register, “ICE agents have arrested an average of 4,143 undocumented immigrants without a criminal record each month under the Trump administration compared to an average of 1,703 arrests per month under Obama.” ICE has conducted 6 major ICE raids this year with several of these raids involving the arrest of more than 100 individuals from one company. The meat packing and the horticulture industries in particular have been the targeted.

In a June raid on a flower and garden center, the extremes that ICE will go to in a raid were revealed. In this raid, undercover ICE officers went to the break room and began passing out Dunkin Donuts to the staff. ICE struck while employees gathered in the break room; ICE took 114 undocumented workers into custody. What is most interesting about this raid is that some employee unwittingly granted undercover ICE agents access to the employee break room. The raid serves as a great reminder that ICE will conduct these raids undercover and employers must train their staff to adequately respond to a raid.

What can companies do to protect themselves and their employees?

Train your supervisors and staff that interact with visitors. Just because ICE shows up at your business does not mean that they are authorized or permitted to be there. ICE officers are allowed to go undercover and do not need to disclose that a raid will occur. However, without a warrant signed by a judge they are not allowed in the non-public areas of private property unless the owner or authorized staff member allow them to enter. Employers can refuse to let ICE enter without a warrant. If ICE does not have a warrant, then employers may feel free to ask the ICE officers to leave. In addition, there is a difference between a warrant issued by ICE and a warrant signed by a judge. You can train your staff to recognize the difference between these warrants and to read the warrant to ensure that the search is limited to what is specifically listed in the warrant. By training your supervisors you can further enhance your ability to respond to an ICE raid.

The best way to respond to an ICE raid is to prevent yourself from being a target of ICE. Employers should do their best to comply with the law. Here are some general tips:

First, depending on your workforce and the labor pool, many employers consider adopting E-Verify, which is a tool that allows you to check a new hire’s authorization to work. This will eliminate many people that are not authorized to work, but it will also reduce the size of your labor pool.
Second, you must train your staff that complete the I-9 (the form that must be completed at the beginning of employment) to detect fake ID’s and other fraudulent documents.
In addition, many employers avoid liability by regularly auditing their I-9’s with the assistance of an attorney or other professional. There are a number of complex I-9 issues. One of the most frequent is that employees on DACA or those that have employment authorization documents can lose their authorization to work. Employers must be prepared to reverify these employees to ensure that they are still authorized to work and to take proper corrective action, including termination, if the employee loses their work authorization.

Finally, ICE also conducts I-9 audits (Notices of Inspection). An ICE officer appearing at a business may be coming to serve a Notice of Inspection rather than to conduct a raid. Employers have 3 days to respond to these notices and it is important that you or a supervisor do not waive the 3-day period. There are a number of corrective actions that can be taken during the 3-day period, so it is important to take immediate steps once you become aware of a Notice of Inspection.

One thing is certain. These raids will not stop. ICE will conduct more raids, take more undocumented workers into custody, and break up more families. By forming an action plan to respond to or prevent an ICE raid, companies may limit their liability, help their employees, and eliminate the risk of being forced to replace a large portion of their staff on short notice. Finally, any company that is raided will face penalties (potentially criminal), fines, and will need to find new workers to replace the ones that it lost.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

By now most people have heard about the Supreme Court’s decision in Janus v. AFSCME (Janus v. American Federation of State, County, and Municipal Employees, Council 31). The Supreme Court determined that public-sector employees have a right, protected by the First Amendment, to not pay agency fees. Essentially, public-sector employees should not be forced to subsidize the speech of other employees. Public-sector employees that have paid these fees no longer have to do so. Many union members may drop their membership since the cost difference between being a non-member and a union member has increased. Several states, including New York and Hawaii, have already stopped collecting agency fees from the non-members of the public-sector unions.
Everyone realizes that the decision will force labor unions to change, but no one is sure exactly how they will change. Some labor unions will continue to decline, but others may flourish in the new environment created by Janus. In addition to the Janus decision, this year has revealed a resurgence of some public-sector labor unions. Notably, teachers in Arizona, Colorado, Oklahoma, and West Virginia, struck and negotiated for higher salaries and other benefits. West Virginia is particularly noteworthy because it was the first state to conduct these strikes, the entire school system in the state was shut down for nearly two weeks, and the teachers were supposedly not able to strike.

There is no doubt that the Janus decision will force unions to rethink their past strategies. They will likely see major membership losses in the 22 states affected by the decision. However, the loss of these members may entice several labor unions to reshape their union by mimicking the actions of the teachers in West Virginia and elsewhere.

The Janus decision will also have ripple effects as related issues including exclusive representation requirements (the union must represent both members and non-members) and the rights of private sector workers in the 22 affected states are resolved. There is already an active case, Sweeney et al v. Madigan et al, alleging that a labor union should not be forced to represent non-members. According to the complaint, forcing the union and its members to “use their money to speak on behalf of the non-member” violates the First Amendment rights of the labor union and its members. Moreover, some states may adopt new laws to protect labor unions in light of the Janus decision. According to the New York Post, New York State Representative Richard Gottfried intends to introduce what he calls “a workaround” to the Janus decision. Richard Gottfried said that “public employers, as part of collective bargaining with public employee unions, should pay for the costs of operating the unions,” according to WCBS News Radio 880. This may mean that taxpayers will bear all of the cost of funding collective bargaining.

Companies, labor unions, and other interested parties will continue to file lawsuits and lobby to either expand the Janus decision or to reduce its effects. The short-term consequences of the decision are just beginning to be felt, but the long-term effects of Janus are yet to be determined.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Month: July 2018

Beware of ICE! What to Do During an ICE Raid

What can companies do to protect themselves and their employees?

What Happens to Labor Unions After Janus?