President Trump has already made aggressive changes in immigration enforcement, and he’s only getting started. Employers should be concerned for themselves and, in many cases, for a large sector of their workforce.
What’s Changed so Far?
Under President Obama, immigration officials focused on detaining and deporting only those undocumented aliens with criminal records. Trump has sharply reversed course. All undocumented aliens are now fair game for arrest, deportation and criminal prosecution.
Specifically, in February, Secretary of Homeland Security John Kelly, issued a policy memo directing that, while criminal aliens remain one priority, “Department personnel have full authority to arrest or apprehend an alien” – any alien – “whom an immigration officer has probable cause to believe is in violation of the immigration laws” and “initiate removal proceedings,” notwithstanding the absence of any criminal background.
The Secretary also ordered the hiring of 10,000 additional ICE (immigration enforcement) officers as quickly as funding permits. If evenly distributed among the 50 states, 10,000 new officers would mean 200 new officers per state. Given the size of California’s immigrant population, however, we should expect to receive more than our fair share of any new enforcement battery.
Even with current staffing, however, ICE is performing large-scale raids. ICE’s arrests in April, for example, included those of 153 foreign nationals in South Texas, 75 in North Texas and Oklahoma, 82 in Virginia and D.C., 26 in Colorado and Wyoming, 95 in Southeast Texas, 76 in Florida and Puerto Rico, and others.
Which Employers are at Greatest Risk?
Restaurant and other hospitality employers remain at the top of the list for I-9 audits, covert ICE investigations, and workplace raids. The Migration Policy Institute estimates that at least nine percent of employees in food preparation nationally are undocumented. In cities such as Los Angeles, New York and Chicago, Restaurant Opportunities Centers United estimates that more than 30% of restaurant workers are undocumented. None of this is a secret to ICE, of course. In February, for example, ICE detained 55 employees in raids of Ichiban restaurants and sister brands in Mississippi.
Other employers at high risk are those in the construction, manufacturing, garment, and food processing industries.
Broadly speaking, larger employers are at greater risk than smaller employers. However, even small employers may come under federal scrutiny, for example, if an undocumented employee is the subject of a traffic stop or criminal proceedings. Such events may lead the government to audit or covertly investigate the employer.
What can Employers do to Support their Employees?
Many of our law firm’s clients are concerned for their employees and asking how they can protect them without violating the law. Employers – whether restaurants, manufacturing plants, construction companies, or otherwise – can’t afford the consequences of an ICE raid, namely, the abrupt detention of a potentially crippling number of their employees and possible costly fines.
First, employers should know that they have no obligation to permit an ICE raid without ICE presenting a warrant. Ask to see the warrant. If a warrant is presented, read it carefully and don’t permit ICE to exceed the scope of the warrant. Oftentimes, for example, the warrant will permit the search and arrest of only named individuals.
Second, call your employment or immigration counsel ASAP while ICE is on your premises. Get legal guidance in the moment.
Third, it’s not illegal for employers to prepare employees for potential enforcement action. The American Immigration Lawyers Association, for example, offers a series of clear, one-page bulletins advising foreign nationals on their rights if immigration officials come to the workplace or their home or they’re stopped in public. It is perfectly legal for employers, for example, to distribute such guidance to their employees.
What can Employers do to Protect Themselves?
Presenting completed I-9s and copies of the underlying documents (passports, social security cards, etc.) on all employees is the employer’s best defense against enforcement action.
If employers don’t have completed I-9s for all their employees or suspect that some of their employees may be undocumented, it is imperative they consult qualified employment counsel for guidance. Requiring some or all employees to go back through the I-9 process or questioning their documentation may give employees grounds to sue for unlawful discrimination under California law. Laying off employees suspected of being undocumented may also lead to discrimination lawsuits.
Doesn’t “Sanctuary City” Status Protect Us?
Thumbing their noses to federal authorities, the City of West Hollywood, the City and County of Los Angeles and other jurisdictions have declared themselves to be “sanctuaries” for immigrants, both legal and undocumented. The West Hollywood City Council, in fact, first declared “sanctuary city” status in 1985, when the concern was immigrants fleeing Central America.
Employers and employees in such “sanctuary” locales must not, however, feel they are safe from federal immigration enforcement. In West Hollywood, the status largely means that the Los Angeles County Sheriff’s Department and City employees don’t ask individuals who are stopped or arrested, or are seeking public benefits, about their immigration status. The Sheriff’s Department and West Hollywood employees also don’t voluntarily cooperate with ICE.
However, declaring “sanctuary” status doesn’t build a Trump-like wall around our city or county keeping out ICE officers. ICE views its authority under federal immigration law to be superior to that of any locality and audits employers, investigates them, conducts raids, and arrests and seeks deportation of immigrants, undeterred by such declarations.
Jeffrey S. Horton Thomas, Esq. is a partner in Thomas Employment Law Advocates, APC, a highly regarded employment litigation defense firm based in West Hollywood. The firm represents only employers and is recognized by U.S. News Best Law Firms for 2017 as one of the best employment defense firms in the country. www.thomasemploymentlaw.com