Episode 228 - How to Prepare Your Workplace, Employees for Workplace Immigration Enforcement

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General counsel for labor and Employment with the California Chamber of Commerce. Hello listeners. Well, federal immigration enforcement has returned to the top news stories and recent enforcement actions serve as a reminder about California employers obligations and offers us a chance to review how the federal government is enforcing federal immigration law. So to update us all on where current workplace immigration enforcement issues stand, we welcome back two incredible immigration law experts. First, Greg Burke joins us today. Greg is a partner in the multinational law firm Shepard Mullen in the firm's labor and Employment practice group. Greg leads the firm's immigration practice and is certified by the State Bar of California as a specialist in immigration and nationality law and has over 25 years of experience advising on all aspects of US immigration matters. Welcome to the show, Greg.

Thank you. Appreciate it.

And next we say hello to Andrew Desposito. Andy is a special counsel also with Shepard Mullins, labor and Employment Practice Group. Andy's practice focuses on providing a full suite of business immigration services for employers of all sizes, ranging from i9 compliance to helping businesses navigate a myriad of visa sponsorship programs. Thanks for joining me today, Andy.

Thanks for having us here, Matt.

All right, so I know we had you two on before back in January, and a lot has happened since we last talked. So really I wanted to bring you both in here right at the outset. And Greg and Andy, can you take some time to discuss the types of changes in federal immigration enforcement policies and procedures that we've seen since we last talked?

Thank you.

Clearly there's been some changes. As we've seen. Originally.

The consensus was that ICE would be focusing on foreign nationals with serious criminal convictions. That is still their primary focus.

We've all seen on the 6 o' clock news situations that are different than that. I'm guessing that is not the norm. But because we see it every night, you know, it's sort of we tend to think like, okay, maybe the enforcement's gone 180. I believe that their primary focus is still those with criminal convictions, but they are starting to do more sort of general ad hoc. They are focusing more on states that they feel are sanctuary states, including California. So we have seen situations where they will just pull up to a street corner and if they think people start running, they believe that that gives them probable cause to detain, question and arrest. And that's probably the biggest change.

Okay, Greg, there are a lot of employers that have not yet been visited by ICE but are still concerned that it may happen at their work site. I Know, you said, you know, a lot of things that we see up on the news, we're seeing sweeps in parking lots and things. And I'm getting calls from members as to how do I prepare for an ICE raid. So the first question that I really want to ask you in particular is, should employers have a standing policy, like a written policy in their handbook or some kind of operations manual for interacting with ice? Should I show up and what types of procedures would you see in that kind of policy?

Great question. So, you know, all employers should have, particularly medium and large size ones, sort of a law enforcement liaison. I believe the acronym is lel. So whether it's LAPD or ICE or some. Some law enforcement agencies coming to ask questions, it's an investigation. You know, the receptionist knows, okay, you know, our chief human resources officer, our chief legal officer, you know, our cfo. These are law enforcement liaisons so that the reception is not having to, you know, make a policy on the spot. Okay, hold on, Officer. You know, I will go ahead and, and ask so and so to come to the front lobby and speak to you. And, and that's a good protocol because, you know, it's better for ICE to be in the front lobby because if they do go to the back of the shop, they may want to start questioning all of your employees and so on.

And then we're real big on training here at the chamber. Is there any kind of training that employers can do around the policy to help ensure consistent application? Because you may have a different receptionist on certain days, or staff may change. What kind of trainings are you seeing or recommending for employers to undertake in preparation for law enforcement to show up at their workplace?

Yeah.

Andy, any thoughts on that?

Well, I mean, the only way anyone is able to be truly prepared for a situation like that might be to as soon as you have prepared and written out what this protocol is going to be, to act it out, have someone act like your officer that goes up to the front desk making this request and see how the person is going to respond in that situation. And sometimes the best training is to actually act it out.

I actually like that. That's something I like to do with our trainings, is a little bit of role playing with that. Andy, an important part of the employer's effort is in having a consistent policy, is also to know the types of documents that ICE may hold up in front of their face when they're coming. So what kinds of documents might the receptionist or the manager or whoever your liaison there at the workforce might see and how are each of those documents different?

So we have two different types of warrants. We've got the judicial warrant. That one's going to be coming from the judge. It is very specific. It's going to ask for specific documents or information on an individual. It's going to give law enforcement the right to actually come onto the presence, onto the location there if need be. If they are going to be getting somebody there. The judicial one should never be contested. They should follow what is request of it. Part of that is going to be to actually look at and review the judicial warrant, make sure it's signed off by a judge first, see what the scope of it is before.

Providing what's needed requested on the warrant. So the judicial warrant is one that an employer should always follow. There's then the administrative warrant, and that's one that can be signed off by a particular ICE officer or supervisor, could be the special agent in charge for ICE out there. And that one is not a judicial warrant. There are limitations on it. In particular, in California because of AB450, there are limitations in terms of what is requested on there and how the employer is able to provide the information requested there. If the officer is insisting on going into the back, the company, at this discretion, could politely refuse to let them go back there. That doesn't mean that we want to be in a situation where there's going to be a contempt of cop and, and having them get upset that they can't, you know, fulfill the terms of that administrative form. What it means is that you need to treat that a bit more carefully because of your own requirements under AB450. So really it's a matter of can we facilitate what's being requested here? Is there another room that we normally have for business purposes that's still public in that sense that we can then facilitate this request? Are there other ways to do this so that we can just address this issue and have them move on? So that's kind of the approach to still take on administrative warrants. And then of course, there's the notice of inspection. That's the most common one that employers get, even though it's still rare to get, is the one where the IAS officers are requesting the i9 documents. Right? They're making that request. You can ask for an extension on it. And under AB450, you also have to still post the notice to the employees within 72 hours that you've got this request. And then after fulfilling that request, if individuals have suspect documents and you need to also provide Notice to those employees as well. So there are a lot of notification requirements under the notice of inspection.

You know, it's interesting, when I started to ramp up enforcement, everybody was, like.

Really, like, concerned about, okay, is it. How do I tell the difference between a judicial warrant and a civil warrant? And, you know, there were flowcharts so that people could study them. But it's pretty simple. If ICE has a warrant signed by a judge, you're going to know it in a second and a half because they're going to come in and they're going to say, we have a warrant signed by a judge. Please get out of our way.

There's no discussion or negotiation or anything. That is usually the quote, unquote, raid. That's where they've uncovered criminal activity. Maybe they're alleging the business owner was helping people come from overseas to work at their restaurant or in their business, and they have probable cause and they got a judge to sign off on that.

They could. Sometimes they sense that there's a criminal activity afoot, and they just start it with an i9 audit. And then they go through all the i9s and they realize there's all these fake IDs, and then they're like, okay, well, that's a crime. These people have fake IDs, so they have different ways to do it. But if it's. If it's not a judicial warrant, you'll know because they're not going to, like, storm in. And then you could look at it and you could see that it's not signed by a judge. And it's usually. Well, it could be a subpoena, like Andy said, for the notice of inspection, or it'll say it's a civil warrant to arrest so and so, like one person or two people, and you don't have to let them into the back of the shop. And in fact, as andy said, California AB450 passed in 2018 says California employers cannot bring ice to the back of the shop unless there's a judicial warrant. So then it would be, Officer, you know, we'd love to help you out here, but this is a civil warrant, and we have a. We don't want to disrupt our business operation. Is there something you could please handle off property? Thank you very much.

And I think this discussion really highlights exactly what you said, Andy, which is you kind of just have to practice this, right? What kind of warrant are we seeing? And like I said, if it's not a judicial warrant, is there a space we can take them to? Is there some way that we can train and direct and minimize the disruptions here. So I think that's a really good opportunity for employers who are really concerned about how to prepare for the event that something happens that you just practice, like with anything that we need to learn and get better at, you just practice. Andy, one thing that I'm hearing from employers in particular is kind of how to talk to their employees about these ICE showing up or law enforcement showing up. Because I know as Greg mentioned, you know, ICE will show up and then all of a sudden a bunch of employees run out the back and we've got chaos going on everywhere. So are you guys providing any guidance in terms of how employers can just talk to employees and how they behave and interact? Should law enforcement show up on site?

I mean, really our focus is to make sure that the business isn't disrupted by this. So really, to the extent that you are controlling the situation so that, you know, they, they may come to know because somebody up front is going to say, hey, we've got ICE out there, or they may see vehicles and things like that out front. Right. But I mean, we want to ensure that people are still, you know, handling business as usual there. I mean, they, without the judicial warrant to just come in and take somebody, really, they're limited in terms of being able to go into that space there. We don't want people to panic and freak out. So want people to just kind of hang tight. Right.

Greg, what we're seeing on the news the last month is just sort of this ad hoc pulling up to a parking lot and seeing people running. It's not really.

Specific workplace.

We haven't seen too many where they're just coming up to a, a company's facility and just trying to barge their way in. Fortunately, what we're seeing on the news is, is not happening to like employers, generally speaking.

I believe that's good to hear. Andy, I know talked about these notice of inspections and I9 audits and that even though they're rare, they're probably the most common type of document that employers might see. So Greg, with this renewed focus on law enforcement that we're seeing, do you think there's going to be an uptick in I9 audits? I know we don't have a crystal ball, but just kind of with your experience and what kind of changes might employers see in their interaction with law enforcement should those inspection results come back with, you know, so and so has suspect documents?

I believe i9 audits are up. It will continue. Statistically though, if you Own a business.

The chances of you're getting audited are pretty slim. Just because it's time consuming. ICE doesn't have unlimited resources. They have limited budgets. So statistically, if I had to guess, you know, maybe one in a thousand businesses might get audited in the next few years. One in 500. Pick your number. But it's statistically still small.

You could have perfect i9s. And if they, they're going to run those names and socials through their DHS special database. And if they come back and say, well, these 20 people are using fake IDs, we want you to double check. And then they used to say terminate them. Now we think they're, they're probably going to come back.

Either with probably a judicial warrant and say, we're just coming to arrest them. They could come back with civil warrants. And then you get into the situation like Andy was talking about. Are you going to, you're going to reception, is going to get the law enforcement liaison person there and then are you going to allow ICE on the property? California says you can't bring them to the back, you know, so then you are going to have to look at what type of warrant you have.

So I know that employers have the option to do self audits on their i9 documents and practices and policies and procedures and all that stuff to make sure that they're at least complying up front. If an employer chooses to do a self audit, are there certain rules that they should be aware of while they prepare to conduct that audit?

Well, one is avoid discrimination. Of course. If you're going to audit, then audit everyone, not just the particular subgroup. If you find a problem and you think it's something that can be cured, you want to give the employee.

Significant time to be able to cure it. Unless it's something they, they admit that, oh yeah, these documents are fake, then it's game over. You have to terminate on the spot. But if they say, yeah, you know, okay, you know, I, I have the documents, you know, I gotta go get them, you know, or I need a receipt notice from Social Security or from dmv. You know, you, you want to be able to give them some time to do that.

I just add something real quick that we're not in an audit. We're not re verifying things like, we're not looking over the documents to see that there. Because the presumption is that the employer doesn't have the sophisticated knowledge that ICE officers have with respect to whether a document is fake or not. So they're not obligated to be looking over documents thinking that, oh, we accept this document and it's fake or not. Now, if the document they had accepted was one that meets one of their parameters, such as it was a damaged document or something like that, that would be a different story altogether because it's something that shouldn't have been accepted at the outset. There, there are very specific rules for that in the employer's M274 handbook discusses what those particular ones are. But generally you're not going to be reevaluating for that purpose. You're evaluating to see if there was missing information that needs to be corrected or filled in if the corrections need to be made. That's where i9 audits are really the tool to be used is that you're here in that cord.

That's a really good point, Andy. And you know, you're looking for missing i9s. You take your payroll report and then you make sure you have an i9 for each person. And then if you have the i9, are they missing signatures or dates or was the, the documents not itemized? If they weren't, then you, you do have to ask them for, for new docs.

Yeah.

And I think this discussion really highlights if you're going to do this, that you go into it deliberately, right. Like you set a checklist for yourself, you prepare how you're going to do it before you jump in to just looking at all your i9s frantically to make sure that everything's there. Or was this document actually legitimate? Because I know there's, we have this knee jerk reaction to jump into some things when these things hit a hot topic like the immigration enforcement rates have. So I think, you know, this part of the discussion especially really highlights for employers. Take your time, be deliberate with it. You're only looking for specific errors as you guys discussed. So I think that's great. Andy, something that's popped up that we didn't really get the last time around when I brought you two on was paying our employees should something happen during an enforcement action at our work site. And so Andy, do we need to worry about wage payment in the event a worker is arrested or even deported or detained? And how might employers address that particular issue?

Well, the employee is still entitled to the pay. Even if they did not have lawful status, they did not have authorization to work, they are still entitled to pay. The question becomes how do we fulfill that obligation when the individual is unavailable? I mean, if, if the person still has an account set up like they're getting direct deposit pay for whatever reason. Maybe they can still have their pay processed in that way. Maybe there is another family member that can accept a check on their behalf. You know, looking at their emergency contact for that individual, maybe there is a way to reach out to them because the check can still met to that individual specifically for it. I mean, if it's possible to give it to somebody that could be trusted to give it to the individual, sure, I think one needs to look at what's reasonable to try and make that payment. But the obligation is going to exist no matter what. They can still come back years down the road for those wages. That obligation doesn't go away.

That's good to note. Wage and hour is always there in the background for all of us. Greg, I know we discussed in the past and you kind of alluded to this at the outset as to what's changed, but locations like schools and hospitals and you know, those who work in home with individuals in other more sensitive locations were traditionally avoided during enforcement actions. Has that posture changed with the federal government and what should employers in those particular industries be prepared for?

Yeah, good point, Matthew. The ICE did announce several months ago that they were no longer going to be held to the sensitive location memo. And fortunately they don't lightly go into schools or hospitals. But they could. A school scenario might be where.

One or both parents are being deported and the kids are US citizens, for example, and they ask the parent do you want the kids to stay in the States or to go with you? And if for example, say the mom says no, I want them to go with me overseas, then you could find ICE at the school discreetly coming to pick up those children to reunite them with the parent.

The.

In the hospital setting you can have a few different scenarios. ICE does have contracts with some hospitals. So you can have a situation where ICE has a detained individual that needs medical care or in rare instances, they have somebody, a patient at the hospital who has who's deportable and has a serious criminal conviction. ICE would not be lightly going into a hospital setting. But if they feel like that's the only way they could, you know, arrest that individual, that you could see that you could have an employee who's a non citizen at the hospital who has a deportable offense or has been ordered deported 10, 20 years ago or so on. So those are some of the scenarios.

Okay, Greg and Andy, I really appreciate the time you've taken to update all of us on, you know, where we are in this current situation. As we know things can change in, in weeks and months. One last thing I wanted to kind of noodle around with both of you is, and you kind of mentioned this a little bit too, Greg, is California is a sanctuary state and there's cities such as Los Angeles which are like super sanctuary cities. Does that impact where our guidance goes with employers depending on where they're located? Like, does California change anything for us? Does Los Angeles change anything for us? What are our thoughts around that as we close out today?

Well, I think AB 450 says that even if an employer wants to bring ice to the back of the shop, they can't. And seeing how under federal rules there's no obligation to bring ICE to the back of the shop with a civil warrant, then that's sort of the outer marker federal preemption rules apply and the feds are going to do what the feds feel they're lawfully able to do irrespective or state or local rules. One thing I will mention though, I think on all sides of the aisles everybody is frustrated and you know, we're all immigrants. I was even listening to Tom Holman who's, you know, the borders are recently, he was saying that they're going to enforce federal laws. And he says if you don't like the federal laws, call your congressman. He says we do need a guest worker program. And so I think, I think that's where we need to channel some of our energy as we all need to call our congressperson.

Congress passed IRCA in 1986, Ronald Reagan was president and 6 million undocumented got green cards. And that was when the i9 form was created. And at the time it was a one page form and it was, the intent was that it was going to seal the border. But it didn't work because there were fake documents out there that looked real and employers didn't know it. And so we ended up now with 12 million undocumented. And so many, many countries have a guest worker program. And I think both sides of the aisle could probably agree on that, to have a guest worker program and mandatory E Verify and let that be sort of a starting base for, for moving forward. But we would encourage you to call your congressman and senator if that's something you want to see.

And then Andy, did you have any closing thoughts on things we haven't touched on?

Only that with more focus on enforcement, not just on criminals, but on status violations. Some of the actions that we've seen here with the termination of the various parole programs that, that we still are going to have employers who are going to need more guidance and that if you have questions when it comes to individuals with those documents, to just reach out to your attorney who can help advise you on what your obligations are. Because there's a lot of constant changes going on. There's a lot of constant updates in terms of what the current administration is doing. And so the only way to manage all that is to be informed in terms of what your obligations are here and what you can do.

That's on the money. Because both of you were commenting on this with the i9s too.

You do not want to wrongfully terminate somebody just because you think they're not work authorized. You really want to be sure. And the rules are really confusing. And the government has changed these rules the last few months. You know about parole and TPS.

If you have an unauthorized worker, ICE will fine you about $2,000. If you wrongfully terminate them and they call the Department of Justice, you will have $100,000 audit.

Yep, I think that's a good point and a great place to close because these rules are changing. I mean, since we last talked just a few months ago, things have changed and I suspect we'll see a lot more changes as well. So listeners out there, if you have any kind of issues with your immigration related stuff, as always, contact your counsel, especially excellent ones like Greg and Andy here. So Greg, Andy, thank you so much for taking some time out of what I'm sure is a very busy time for you both today.

Thank you. Thank you, appreciate it.

And thank you listeners for joining this discussion on the workplace as the complexity of these issues continue to evolve. Always stay in touch with legal counsel and as always, please share and subscribe to Cal Chambers podcast by visiting calchamber.com.