In light of the current administration’s approach to immigration enforcement, it is important that employers understand their legal rights and responsibilities when faced with potential raids by U.S. Immigration and Customs Enforcement (“ICE”) or local police acting in cooperation with ICE. Understandably, many employers will want to ensure not only that they are complying with the law, but also that they are looking out for their employees. Employers must be careful, however, not to provide too much assistance and cross the line between compassionate and criminal behavior.
Criminal Harboring Laws
The Immigration and Nationality Act prohibits individuals from concealing, harboring, or shielding unauthorized persons. Under federal law, a person can be guilty of “harboring” where their conduct “substantially facilitates” a noncitizen—such as an undocumented worker—remaining in the U.S. illegally. Unfortunately, the courts have not provided much guidance as to what constitutes “harboring” or “substantially facilitates.” Early case law held that the mere provision of shelter with knowledge of a person’s illegal presence was enough. Recent case law within the Ninth Circuit, however, suggests that an individual must have also intended to violate the law. Other circuits have applied a much broader interpretation, noting that an element of harboring is satisfied by any conduct that makes an undocumented worker’s presence in the U.S. substantially “easier or less difficult” (the redundancy lies with the court). In short, an overzealous prosecutor would have wide discretion.
So What Can Employers Do?
Employers should limit their assistance to providing factual information. This includes informing employees of their rights, such as the right to remain silent, the right to refuse to sign any documentation, and the right to speak with an attorney. Although you can inform your employees that they do not have to answer questions from ICE agents, you may not instruct them to answer questions in a certain way or forbid them from answering questions at all.
It should go without saying that conduct such as paying undocumented workers under the table, helping them obtain false identification, or instructing them to pose as customers to avoid detection in a raid is illegal.[1]
If ICE agents show up at your facility, you should take the following steps:
- Contact your attorney
- Confirm that there is a warrant and review it to determine its scope
- Accompany ICE officials at all times and document everything
- Refuse to discuss policies, practices, or particular employees with officials
- Do not hide employees, assist with their escape, or mislead ICE officials
If you anticipate that your business may be targeted in an ICE raid or have questions about your I-9 records, please contact one of our labor and employment attorneys.
[1] Yes, this is a real life example. An employer instructed his undocumented workers to pose as customers so that they could leave the restaurant. The employer then argued that he was not guilty because he did not actually hide the workers and they were merely encouraged to leave the restaurant in plain view of the officers.