When ICE (Immigration and Customs Enforcement) agents, law enforcement, or other types of government representatives arrive at your business, particularly during an immigration raid or an I-9 audit, it is crucial to know how to respond in a calm, professional, and legally sound manner. Mishandling such situations could lead to unnecessary liability or complications for your business and its employees.
It is important to preface that speaking with an employment attorney is important when faced with a government raid or audit. Unfortunately, most businesses don’t have an attorney on staff, nor do they have one on speed dial.
Running a business compliant with all employment laws is imperative. This means being proactive and considering the use of an HR professional to audit your employee records.
Should you be confronted with a visit from a government agency, below is a general guide on what to do.
1. Stay Calm and Professional
-Do not panic or overreact. A calm demeanor will help you make better decisions and set the tone for employees to follow.
– Show respect to the officials but know and enforce your rights.
– Avoid making any statements that might incriminate yourself or others.
2. Understand the Different Types of Visits
Law enforcement agents may arrive for different purposes, and your response will differ depending on the situation:
– I-9 Audit: ICE or other immigration authorities are reviewing your compliance with employment eligibility verification (I-9 forms).
– Immigration Raid: ICE agents may show up to detain individuals suspected of being undocumented or in violation of immigration laws.
– Search Warrant: They might have a warrant to search your premises.
– Subpoena: They may request documents or information through a subpoena rather than conducting a search.
– Investigations (e.g., IRS, DOL):Other law enforcement agencies may visit for unrelated legal or regulatory investigations.
3. Know Your Rights and Limit Government Overreach
– Do not consent to searches: Without a valid legal warrant, you are generally not obligated to allow law enforcement to search your business, employees, or documents.
– Ask for a warrant: If agents want to search your business, ask to see the warrant. Read it carefully and ensure it is signed by a judge and lists the proper date, time, and area/thing to be searched.
– Do not physically obstruct: If agents proceed with a search under a warrant, you must not interfere. However, you can monitor their activities, take notes, and contact your attorney.
– Limit access: Only allow agents to access areas specifically authorized by the warrant or subpoena.
4. Appoint and Train a Company Representative
– Designate a Point of Contact: Assign a manager or supervisor to act as your company’s representative during situations involving law enforcement. This individual should:
– Request identification and credentials from agents.
– Ask to see and review any legal documents (e.g., search warrants, subpoenas).
– Contact your attorney.
– Train this individual to handle sensitive situations involving government agencies and to avoid making unauthorized statements.
5. Notify Your Attorney Immediately
– Inform your attorney as soon as law enforcement arrives. They can provide immediate guidance on how to respond and interact with the agents.
– Do not provide any statements or information without consulting legal counsel first.
– If the agents present a subpoena or warrant, your attorney can review the documents to determine their scope and legality.
6. Protect Employee Rights
– Inform employees of their rights: Employees have the right to remain silent and should not answer questions or sign any documents without an attorney present. They should also not lie to officials.
– Do not permit illegal actions: For example, ICE agents are not allowed to question employees randomly in unauthorized areas of your business.
– Do not retaliate against employees: If any employees are involved in the investigation, continue to treat them fairly and without discrimination.
7. Cooperate Within Legal Limits
– Provide only information that is legally required. Avoid volunteering additional details or engaging in unnecessary discussions with agents.
– Do not obstruct or mislead law enforcement agents, as this can have serious consequences.
8. Handle an I-9 Audit Properly
If ICE conducts a Form I-9 audit:
– Review the Notice of Inspection (NOI): ICE must serve you with a NOI before proceeding with an audit. You have three business days to prepare and provide requested I-9 forms.
– Consult an attorney immediately: Your lawyer can guide you in complying with the audit, identifying deficiencies in records, and minimizing potential penalties.
– Do not falsify or alter records: Ensure that you provide accurate and complete records. Falsifying records can result in severe penalties.
9. Document Everything
– Record the names and badge numbers of any agents involved.
– Take notes during the visit, including a timeline of events and areas accessed.
– If possible, have a neutral party (other than employees) witness the interaction with law enforcement agents.
10. Conduct Post-Visit Follow-Up
After the visit:
– Debrief with your attorney to evaluate the event and address any potential legal issues.
– Contact employees to explain the situation and ensure that their rights and well-being are protected.
– Review your company’s immigration compliance policies and procedures (e.g., proper completion of I-9 forms, verification of employee eligibility) to prevent future issues.
11. Be Proactive Before an Incident Occurs
– Conduct Regular I-9 Audits: Review and correct errors in your existing I-9 records under guidance from an HR professional or an attorney to ensure compliance with immigration law.
– Train Employees and Managers: Provide training on what to do if ICE or law enforcement shows up.
– Ensure Proper Posting: Post required workplace notices, including those that inform workers of their rights, in prominent areas.
– Maintain Communication with an HR professional: Work closely with an HR professional or an immigration attorney to ensure your business remains compliant with federal and state laws.
Marzano Human Resources Conulting works with businesses in conducting HR audits of all employee-related records, including the proper handling of I-9s. Reach out to us for a no cost initial consultation.