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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. We are now fully into a new presidential administration and are all trying to make sense of the whiplash and policy changes that accompany every new administration in the White House. While much of California employers focus remains on coming up to speed with state and local changes, one area that the federal government retains significant control is over work workplace immigration rules. As recent headlines demonstrate, the federal government appears committed to exercising its power in this area. So to discuss current workplace immigration enforcement issues, we welcome two amazing immigration law experts. First, we welcome Greg Burke to the show. 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 of course, has over 25 years of experience advising on all aspects of US immigration matters. Welcome to the show, Greg.

Thank you. We're happy to be here.

And next we welcome Andrew Desposito. Andrew is special counsel also with Shepard Mullins labor and Employment Practice Group. Andrew'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 as well, Andy.

Thanks for having us.

All right, so Greg, of course, I'll start with you. And we have obviously a lot to cover. I know this has been a very hot topic for the last several days since President Trump took office. And so what I'd like to do is get some basic background information kind of out of the way. So, Greg, who's really responsible for workplace immigration enforcement and kind of what they're looking for so employers know who it is that they're really talking to in these issues?

Yeah. So it's under ice, Immigration and Customs Enforcement, which is part of the Department of Homeland Security. And then within ICE, they have two branches. They have Homeland Security Investigations, HSI. Sometimes you see that on TV on their uniforms, and they will do I9 audits. And they also investigate human trafficking and smuggling and things like that. And then the ones that you've seen on TV the last few days is ERO Enforcement and Removal Operations. And they are in charge of finding people that are deportable now, called removable and arresting, detaining and removing them. Frequently they have to first see an immigration judge. But that's sort of the. The big picture.

Okay. And I'm glad you mentioned i9 audits. Of course, that's something that some of our members and employers are really familiar with. And Andy, we know there's really two types of workplace enforcement actions around i9 generally i9 audits and raids. So I want to talk about audits first. First really how are they triggered and how does an employer have to respond to these audit requests from the federal government?

So the employer is going to get a visit from the the ICE agent from HSI with a request for the i9 documents and they're going to give them a certain period of time, usually a few days time, to comply with that request. Now, do they have to comply within that period of time? They could certainly ask for additional time, but it's going to lay out that they want the i9 documents for their review first.

Okay. And then in addition to federal law, we know California during the first Trump administration enacted a bunch of different laws to try and counteract a lot of his policy initiatives. And so California enacted its own i9 audit notice requirements for employees. How does that work for employers once they receive the audit notice from the federal government?

So there's a couple things that that bill addressed. One of those things is that the employer is now required to provide notice to their employees within 72 hours of getting that notice. So now the employees are also on notice of it. If there's a union, they'll go to a union rep, but the employees need to be put on notice. The other aspect of that bill is if they're coming there and also want to come to other parts of the business, there is a specific prohibition that the business cannot voluntarily allow the ICE agents into non public spaces. Right. So that's going to be on a fact by fact circumstances. Right. So if you have, say a manufacturing plant, maybe their business office is a place that they take people from the public for general matters that the business needs to attend to. But there's also the floor space there that may not be accessible to the public. Right. So it's going to be on a fact by fact basis on whether or not the officer will go any farther. But the employer should still be complying with the request to try and comply with the request that they receive.

Okay, so then we got the request for documents. We send the documents to the federal government. How will we know when it's over and what does the federal government usually tell us as part of the results?

So the audit can take as long as the officers want to take. As soon as the documents are provided to them, they're going to review the i9s. They're going to review any of the supporting documents that are attached to those, which is usually a best practice to have, because they're going to want to be looking at how the employer was able to verify the person's work authorization. So they're going to be looking at all of those documents. And there's two things that can come out from that. One, they can issue a notice of suspect documents, meaning that they believe these individuals did not have proper documents for work authorization, and those individuals are going to have to be let go. The other notice that can come from the ICE agents is a notice of fines, meaning that they see from the all of the i9 records there that there are substantial violations that weren't fining the employer and they'll set a fine amount for that. At which point the employer is then going to have to respond whether they want to pay that fine, whether they want to appeal that fine to Okaho, which is the court that takes those appeals. So it's going to depend on those circumstances.

Okay. And then, you know, we just talked about California rule kind of in this area. So if you get results back and then you have some affected employees, as you mentioned, they may have some issues with their documentation. Are there any additional California requirements that employers have to meet based on those results?

I mean, it goes back to the requirements of these documents because all of the ICE documents are required to be provided to the ICE agents. The employees should be made aware of that. But if it goes beyond the scope of that, employers could be fined. So the employer should be really careful about what is provided to the ICE agent.

Okay, Greg. So more concerning to employers, at least presently that I'm hearing, are about the raids because they're making much bigger news headlines, of course. And so for employers, they're curious as to like how these workplace raids are triggered and what does it really look like in practice.

It's a moving target. Literally every day. It's been changing since the new administration came in on January 20, nine days ago. It appears that the major thrust is that they're targeting non citizens with criminal convictions. And if that person happens to be in your workplace, that is an easier place for ICE to arrest somebody than to go to a home. Home can have guns, can have a lot of people, all these things. So it's very possible that an employer might have an ICE agent come in with a civil administrative warrant walking into the lobby and saying, johnny is a non citizen with a criminal conviction. He's removable Deportable. And we're here to pick him up. Now, our suggestion to employer is to cooperate. Now, technically it's a civil warrant. In that case, you do not have to talk to ice, you do not have to cooperate. But if an employer is not going to cooperate, they're probably going to bring on more trouble on themselves because ICE has a lot of tools in their toolbox, including they could launch an i9 audit and so on. So we recommend cooperate. The employer could then go to the back of the shop floor and say, you know, Johnny, I got somebody here in the front that wants to talk to you and try to keep it contained that way. We heard yesterday and this morning that ICE is under pressure to make more arrests, which means they may start trying to arrest bystanders in that area by asking people, oh, are you a non citizen? Also tell me, and they start questioning and so on. So to the extent you don't need to let ICE into your back shop, that's a better practice. They're there normally just to extract one individual. And in rare cases they could have a criminal warrant signed by a judge, in which case there's no discretion. They're just here and you must let them do whatever they want to do. But usually it's a civil administrative warrant.

Okay, and then I'll kind of throw this out to both you, Greg and Andy about, you know, staying with this topic on an ICE agent or a federal Immigration enforcement agent, because I know they've talked about multi agency cooperation with this. They just, they show up to your doorstep and you're not sure what it is you want to do. Are there any immediate first steps you recommend that the employers take? Like, do they pick up the phone and call somebody? Do they automatically say no? Do they say, hey, wait on the porch for 15 minutes before we let you in? What are some immediate response that employers are going to do? Because I tell you, a lot of the questions that we get from especially human resources personnel and office managers and owners who will be dealing with this is I don't know what to do to immediately start. So I like to pick both of your brains about any kinds of ideas you have about initial responses when somebody shows up on their doorstep at the workplace.

Eddie, I mean, it depends on the scope of it, right? I mean, if we're talking about a lot of individuals there, you obviously can't tell them to just go away. You want to help them understand that you've got a place of business that you need to manage its operations of, but that you're willing to comply to the extent that you can be able to help them with the individuals that they have identified. So I mean, you need to have a very measured response based on what that scope is looking like and how you can handle it. Because every business operations looks different. It's going to be different in terms of how you can approach them with this. I mean, they're going to be firm about we have the initiative warrant here, we are going to try and execute this. And we don't want them to be waiting outside and creating some concern for bystanders around the area as well. We don't want them to stay any longer than necessary because there's sometimes a chilling effect when you see law enforcement outside the business as well. So you want to try and manage all of that.

CRAIG and to that point, I think every business should have an established protocol that if police or in this case I show up, the front office secretary knows who to call. And then if there's legal involved, then okay, call outside counsel if need be. Or if there's no on site legal, okay, then call outside counsel to discuss it. But like Andy said, you don't want to keep an ICE agent waiting if they're there to just pick up one person and they have look at the warrant and read it carefully. Okay.

So because there's been a lot of news headlines around what we used to consider as safe haven locations, schools, churches, hospitals. And some of the news that's come out recently is those are open for business for ICE agents to come and find people and detain them if they have warrants. So we have employers in these fields. Are there any special rules for employers in these fields or any considerations that they should be given that other businesses might not have to?

I did say that yeah, we can go into a school or a church or a hospital. But then they also the other day said, look, you know, we're still after somebody, an individual with a criminal conviction or they've been ordered removed before and they never left the country. So you know, that's their focus. The only time that it would be some other set of facts, which would be very rare if like some organization was like intentionally harboring a lot of non citizens and trying to hide them from ice. But that's sort of a rare instance. But ICE has no interest in going into hospitals for sure. They don't want to interrupt medical treatment. They don't want to interrupt any of that. So if they're coming in, it's for one person and they'll have a civil War usually.

I would like to chime in, Greg, that recently the Quaker Church did file a lawsuit with respect to ICE coming in and they're bringing up First Amendment, freedom of association, religion grounds on this. So it is an ever evolving situation to what extent other constitutional protections are at play. So we are going to see how that unfolds.

I think that's what kind of highlights the issue that we're talking about here is, you know, we have just what's happened in the last week, and we don't know, you know, what will change at the administration level. We don't know what will change in the courts. We don't know what will change at the state level. But we do know that employers, Andy, want to talk to their employees now or they want to know how to talk to their employees. So, you know, for example, we may have workers in our business who are authorized to work in the United States. We're not concerned about leaving, but they may be expressing concerns about themselves because of their immigration status or their national origin. Maybe they're here on a visa here, validly on a visa, or under some other kind of work authorization, but they may have family members that they're concerned about as well. What are some communication tips that you might have for employers with their workforce around immigration enforcement?

I mean, we don't want people to panic the workers that they have to have work authorization. You want to be proactive in making sure that those documents don't expire. If you have family members that have dependent statuses, you want to make sure that you are making sure that you timely renew that work authorization, that dependent status. You just want to be proactive about all this instead of, you know, waiting until the last minute. We see a lot of times that people wait till the last minute to take care of that paperwork because it's not generally front of mind when you have it available. But lapses in status do create issues. And if you don't have the paperwork submitted properly and it gets rejected by uscis, then you could suddenly not be in status again. We want people to take a proactive approach. The employers can remind individuals that you need to be proactive in making sure that you don't create the issue yourself as well. Because if you have some sort of lawful status, then you should try to maintain it and not wait till the last minute there. And if they have individuals, if they know family and friends that may have an issue with their immigration status, have them talk to immigration attorneys, specifically immigration attorneys. There are plenty of notarios out there that people end up talking to. And, you know, you want to speak with experienced immigration counsel who work with the agencies directly on all this. So you want them to be able to evaluate all of the potential issues, all of the potential reliefs that are out there. And so that's on a case by case basis. But we want people to be proactive about these sort of things instead of just waiting and hoping that they don't end up getting picked up.

All righty. And Greg, we'll go ahead and finish off with you on something that really kind of gets overlooked in this area. As we talk about immigration and enforcement and visas and things are the traditional anti discrimination laws that we have around immigration status, national origin, race, skin color, these kinds of things. We want to remind employers what issues they need to look out for. So what kind of common hiring and personnel management issues should employers look to avoid in this area? How can they avoid. In an effort to try to be overzealous with complying with immigration laws, they end up doing things that might violate an anti discrimination statute. How can employers balance these two?

Andy and I, we counsel employers all the time about this. The Department of Justice has an aggressive unit called Immigrant and Employee Rights ier and their mission is to go after employers who accidentally deny employment, even if they had the best intentions. And, you know, they got confused about the work authorization rules. So number one rule is do not ask about immigration status until I make you an offer, and even then, don't ask about it. The first time the employer gets to find out about immigration status is when they fill out the i9. The only question you can ask today you may is do you need visa sponsorship to work for us today or in the future? Because maybe they graduated college and they got a temporary work permit. That's. You're allowed to ask that even before you make the offer, but nothing else. Can't ask what country they're from or, you know, are they on TPS or DACA or this or that. When they fill out the i9, you find out. And then, you know, some of them have temporary work authorization. The rules can be very confusing whether or not there's an extension of their work permit. And we suggest employers who have the slightest doubt call council, because call the chamber, because if you got it wrong, DOJ will make your life very difficult. They'll start an audit and paper you to death.

Wonderful. Well, Greg and Andy, thank you so much for taking some time to have this invaluable discussion with me, especially with what I am sure have been very busy schedules for you both lately and probably plan to get a little bit busier. So Greg and Andy, thank you again.

Thank you.

Thank you Matt and thank you listeners for joining this discussion on the workplace as the complexity of these issues evolve. Always stay in touch with legal counsel experts like Greg and Andy here. And as always, please share and subscribe to Cal Chamber's podcast by visiting calchamber.com.