Anyone watching the news can see that the federal government has significantly ramped up its immigration enforcement efforts, including conducting highly visible raids by armed agents on particular workplaces. Federal officials also have made no secret of their intention to continue to be aggressive about such efforts.
For those business owners and managers who are anxious about what to do if agents from Immigration & Customs Enforcement (ICE), Customs & Border Protection (CBP), or other law enforcement officers appear at their business, here are the most common tools that ICE uses, and some perspectives about how employees can respond if law enforcement agents do show up.
Notice of Inspection (most common)
Agents from ICE may come to any given site (office, warehouse, manufacturing facility, retail store, food service, etc.) to deliver a “Notice of Inspection.” This is a written demand to produce particular employment documents, most commonly I-9 forms and payroll records. ICE then reviews those records to assess whether the company has any workers on the payroll who do not have legal status, and to determine whether the company filled out and maintained proper I-9 documentation for all of its personnel.
A Notice of Inspection does not require that the employer provide the requested records immediately; the employer usually has at least three business days to respond to the request. That gives the employer time to locate and gather the appropriate records and send them to ICE in an orderly manner. Moreover, a Notice of Inspection does not entitle the agent or agents to enter the premises and “look around.” Once they have dropped off the notice, it is legitimate to ask the agents to leave.
Additionally, a Notice of Inspection does not obligate anyone at the employer’s site to speak with the ICE personnel who may be delivering the notice. Once an ICE agent delivers a notice, it is perfectly legal to say, “Thanks; we will be in touch,” and to leave the conversation at that. If an ICE agent delivering a notice tries to engage with any employee in the office (or anywhere), the employee has the right to respectfully ignore the request, or to simply say, “Thanks, but I don’t have anything to say.”
If ICE agents come to the site to deliver a Notice of Inspection, be sure to ask the agents for their business cards. After an employer receives a Notice of Inspection, the next step is to engage with appropriate legal counsel and begin the process of gathering the documentation to respond to the request (I-9 paperwork and payroll records) in a timely manner.
Judicial Search Warrant (less common)
If ICE, CBP, or other law enforcement agents appear with a formal search warrant signed by a judge, that’s a very different scenario. A judicial search warrant permits law enforcement to get immediate access to the property and to the employment records detailed in the warrant.
Employers have the right to accompany agents (or assign an appropriate representative to accompany agents) and monitor the search, as long as company personnel do not interfere with or obstruct the search. Again, it is important to ask the agents for their business cards and a copy of the warrant. If any property is seized, the company should try to document what property was taken.
Judicial search warrants are very rare, and are only issued when law enforcement agents demonstrate to a judge that they have legal “probable cause” to enter and conduct a search. Warrants also are limited in the sense that they only give the agents the authority to enter the particular areas or locations that are specified in the warrant; agents serving a search warrant listing particular areas of the business do not have the right to enter all areas of the business and just “look around.” Warrants also are limited in that they only allow the agents to seize particular records described in the warrant (I-9 paperwork, payroll records, and so on).
And as with a Notice of Inspection, a search warrant does not obligate anyone at the company to speak with the law enforcement officials who are conducting the search. As above, if a law enforcement agent conducting a search with a warrant tries to converse with anyone, employees have the legal right to respectfully ignore the request, or to simply say something like, “Thanks, but I don’t have anything to say.”
But if ICE, CBP, or some other law enforcement entity does show up at the business with a search warrant, the employer should instruct the staff to step aside and let the agents do their work—subject to the particular locations and documents detailed in the warrant.
Judicial Arrest Warrant (even less common)
In rare cases, ICE, CBP, or other law enforcement agents may show up with a judicial arrest warrant naming some specific person or persons. (As above, ask the agents for their business cards and a copy of the warrant.)
Notably, an arrest warrant, standing alone, is not a search warrant. An arrest warrant does not give federal agents the authority to enter the premises and look for the person or persons named in the warrant. If the subject of the warrant is in view, or is “called to the office” where the agents are waiting, then the agents can effect the arrest.
As with a Notice of Inspection or a search warrant, an arrest warrant does not obligate anyone at the company to speak with the federal agents who are looking for the subject of the warrant. As above, if a law enforcement agent presenting an arrest warrant attempts to converse with anyone, it is perfectly legitimate for employees to respectfully ignore the request, or to simply say, “Thanks, officer, but I don’t have anything to say.”
At the same time, company personnel definitely should not interfere with the agents’ efforts to effect a lawful arrest. Telling an employee who is named in an arrest warrant to leave the premises or hide, or giving the agents false information about the individual’s whereabouts—such interference can lead to separate criminal charges against the company’s personnel.
If Federal Agents Do Not Present With Any Of These Tools
If ICE, CBP, or other law enforcement agents appear on the property without any of these tools—no Notice of Inspection, no search warrant, and no arrest warrant—strictly speaking, the agents have no greater right to be on the company’s property than any other member of the public. This means that agents do not have a right to act or conduct themselves in a manner that the company would not permit or condone by any other member of the general public.
Technically, therefore, an ICE or CBP agent without a warrant or Notice of Inspection can be asked to leave, just like any other member of the public. (As many may recall, the Los Angeles Dodgers gave the world a vivid example of an employer’s rights in this regard last month, when the ballclub refused to permit a caravan of federal law enforcement agents to access the parking lots at Dodger Stadium on a game day.)
In Summary
Many employers naturally are anxious about asking law enforcement to leave their premises, nor do employers want to be accused of “interfering” with law enforcement efforts. But it can be important for employers to be aware of their rights as well as their obligations. If the question is what an employer must do, the answer is clear: the employer must respond to a Notice of Inspection within the time frame specified in the Notice, and if presented with a judicial search warrant, must permit access to the locations and property detailed in the warrant. Employers do not have a legal obligation to permit ICE, CBP, or other law enforcement officials to engage with the employer’s personnel, to wander around the property at will, to “stop” people on the premises, or to require that people present any papers or documentation.
We encourage employers who have specific questions about the present state of immigration law enforcement (or any other employment law topics) to contact Don Johnsen or any other member of Gallagher & Kennedy’s Employment & Labor Law practice.
about the author
Don Johnsen represents employers in matters involving employment discrimination and sexual harassment, wrongful discharge, breach of contract, wage and hour disputes, arbitrations, and labor practice charges. Practicing employment and labor law exclusively, Don advises on employee hiring, discipline and discharge procedures, drug and alcohol testing, non-competition matters, labor relations issues, and other employment-related policies and procedures.