The news is rife with stories of federal immigration agencies increasing their enforcement activity, particularly US Customs and Immigration Enforcement (ICE) and the Department of Homeland Security (DHS). But what should employers do if these agencies come knocking?
General Protocol for Agency Visits
Preparedness is key, as a variety of federal and state agencies, generally those associated with labor rights and enforcement, health and safety, or immigration control, may seek to enter your business for enforcement and investigation purposes.
Companies, working alongside counsel, should develop protocols to ensure personnel, particularly staff located in entry areas, know how to respond when agencies arrive. That protocol should outline immediate points of contact for each type of agency visit and should instruct staff on how to respond if agency personnel are seeking entry to non-public office or site areas. Staff should be encouraged to be polite and respectful while understanding the types of information and access they are – and are not – obligated to provide.
US Customs and Immigration Enforcement (ICE)
Under federal law, all employers are required to timely verify their employees’ identity and employment eligibility by completing a Form I-9. US Immigration and Customs Enforcement (ICE) and other authorized agencies may inspect Form I-9 records if they provide three business days prior notice via a “notice of inspection.” While no subpoena or warrant is required for an inspection of Form I-9 records, the three-day notice period is compulsory, and employers in some jurisdictions, including California, are required to provide their employees with notice of a pending I-9 audit. Employers should establish a standard operating procedure to address a notice of inspection as soon as it is delivered.
ICE agents may also appear to locate, question, or detain workers. ICE agents may enter public areas of the workplace, such as a parking lot or lobby, without a warrant, but may not enter other areas without permission or a judicial warrant. Because ICE agents often present “administrative warrants,” which are not judicial warrants, it is imperative that employers establish a protocol for immediate responses to ICE requests, including a timely review of any documentation presented by the agency to verify the type and scope of any warrant.
Other Agency Visits
The Occupational Safety and Health Administration (OSHA) (and its corollary state agencies) may also come onsite for announced or unannounced visits. Employers should have pre-designated staff appointed to liaison with OSHA; those staff members should be prepared to both verify OSHA credentials and engage in a substantive review of OSHA’s requests (typically presented in what is called an “opening conference”).
The state or federal Department of Labor (DOL) may send agency personnel to begin an audit or inquiry. They almost always first arrive onsite to drop off notices of pending investigations, and employers are generally not obligated to provide same-day access or responses to specific inquiries. As with other agency visits, companies should establish protocols that clearly outline how staff should respond to a DOL notice and to whom notices should be forwarded within the organization.
While unannounced agency visits are seldom welcome, well-crafted policies will best prepare staff if they take place.
