Given current events, employers and manager should keep the following guidance in mind if officers from U.S. Immigration and Customs Enforcement (ICE) arrive at your workplace.  While ICE raids are rare, it is important for you and your employees to be aware of what to do (and not to do), including how to respond lawfully, protect employee rights, and minimize disruption.

First and foremost, do not panic. Employers and managers should advise employees to remain calm and refrain from running to the exits.  Remember to remain courteous and avoid obstructing enforcement officers.  However, do not volunteer any information beyond what is legally required.

In the event ICE arrives at your workplace, politely ask agents for: (1) their names and badges; (2) the purpose of their visit; and (3) any warrants or subpoenas authorizing their presence or actions.

Employers or managers should take out a phone and start recording the entire interaction by video, if possible.  While recording, be sure to announce clearly that you are recording, because it is not lawful to secretly record someone in California.

Review the warrant or subpoena carefully.  Importantly, you should say: “I need to review this with our legal counsel before proceeding. Please wait while I contact them.”

Employers and managers should tailor their response to the type of warrant or notice presented.  There are three different types of warrants:

1. A Judicial Warrant is signed by a Judge and is typically labeled as a search or arrest warrant. With this type of warrant, ICE can enter non-public areas or make arrests, as specified in the warrant.  Should this type of warrant be presented, call your attorney to confirm that it is a judicial warrant.  Upon confirmation, be sure to comply.
2. An Administrative Warrant is issued by ICE and is not court-approved. These are often titled “Notice of Inspection,” or I-9 audit request (e.g., Form I-200 or I-205).  With this type of warrant, ICE cannot enter non-public areas without consent.  Employers and managers are not required to provide immediate access.  Should this type of warrant be presented, call your attorney for further instruction.
3. A Subpoena or Notice of Inspection is a request for records (e.g., Form I-9s). If presented with one of these documents, employers usually have three business days to comply.  If presented with a request for records, be sure to provide a copy of the subpoena or notice to your attorney as soon as possible for further instruction.

California’s Assembly Bill 450 (Immigrant Worker Protection Act) prohibits employers from voluntarily providing ICE with facility access or information other than what is required by a warrant or subpoena.

ICE needs a judicial warrant or your consent to lawfully enter non-public areas (e.g., employee-only spaces).  You should always decline consent unless instructed otherwise by your attorney.

Employers and managers are not required to escort ICE agents into private workspaces unless the agents present proper authority, such as a judicial warrant.  However, if ICE forcibly enters a non-public space, do not try to physically impede them.  Simply continue to video record the entire interaction.  Any physical altercation with ICE will lead to your arrest.

Should you encounter ICE or other federal agents in your workplace, do not voluntarily share information about employees’ immigration status, personal data, or work schedule unless directed to do so by management or legal counsel.

In the meantime, avoid questioning employees about their immigration status, and do not take adverse action against employees based solely on ICE’s presence.  Instead, advise employees that they have the right to remain silent and to consult a lawyer.

Under any of the circumstances discussed above, you should notify key personnel, affected employees, and legal counsel immediately.  First, contact your highest level Human Resources Director, and then HR or Management should contact the company’s legal counsel or other designated compliance officer.  Upon authorization from counsel or upper management, you must notify the employee whose records have been requested, and provide copies of the applicable subpoena, warrant, or notice to the employee.

On the other hand, do not provide information about the inspection to any employee other than management and the employee named in the warrant or subpoena.  Furthermore, avoid creating unnecessary fear by spreading unconfirmed information about raids or inspections.

Following your encounter with ICE, be sure to write down the information you collected, including names of the agents, their badge or ID number, and their stated request.  Take a photo or make a copy of the warrant, subpoena, or notice of inspection.  Save the video or audio recording of the encounter and send it to legal counsel.

Either before or after an ICE encounter, you should review your Form I-9 compliance practices and recordkeeping.  You may consider conducting a voluntary internal audit under legal supervision.

Employers and managers should educate staff and supervisors about the lawful protocols mentioned above.  Continue to communicate clearly and supportively with affected employees.

If you wish to take further action to prepare for this rare occurrence, consider designating a single point of contact for any ICE interactions.

Employers and managers should also clearly label all non-public spaces with signs that say “Private,” which would include spaces where employees take breaks and keep their personal belongings, and where employee files are kept.

Front desk staff should be trained not to allow law enforcement access to private spaces without permission from a manager or the company’s legal counsel.

Finally, display “Know Your Rights” materials in break rooms.  Please click here for an example from the American Civil Liberties Union (ACLU).

• Independent Hospitality Coalition: https://www.ihcla.org/immigration-resources
• Immigrant Legal Resource Center: https://www.ilrc.org/red-cards-tarjetas-rojas
• ACLU Guide with samples of warrants: https://www.aclunc.org/our-work/know-your-rights/know-your-rights-immigration-enforcement-and-warrants
• California Labor Commissioner’s guide to compliance with Assembly Bill 450 (Immigrant Worker Protection Act): https://www.dir.ca.gov/dlse/AB_450_QA.pdf

Please contact your Hill Farrer attorney or any member of our Labor and Employment department at (213) 620-0460 with any questions about federal or California laws regarding employment of immigrants, or I-9 compliance.

For a printable PDF version of this article, click here.