Uncertain Immigration Climate – What Can Employers Do?
Since the 2016 election there has been speculation of wide-spread immigration actions by the United States Immigration and Customs Enforcement (“ICE”). Repeated announcements from the President for “round-ups”, recent mis-match letters from the Social Security Administration (“SSA”) and court action concerning the census citizenship have many in the community on edge.
While it is difficult to predict what will happen, employers should be prepared in the event ICE raids or audits their workforce. Employers are in a difficult spot – caught between federal and state law. They must not knowingly employ an individual who is not authorized to work in the United States, but they also must not discriminate against an individual because of the individual’s immigration status, citizenship or national origin. And for many, the legal reality is overshadowed by the human reality that many long term employees with family and ties to the community may be undocumented and at risk.
In light of announced raids, employers should review current legal authority concerning what they can and cannot do should ICE arrive at the worksite. A Federal Court temporarily blocked as unconstitutional portions of AB 450, California’s 2017 expansive immigration law. Most relevant for employers is that California cannot penalize them if they refuse to allow ICE or other enforcement agencies access to employee records or into nonpublic areas without a judicial warrant or subpoena. Employers may choose to voluntarily allow such access, but they are also not required to provide it.
Employers should communicate to their public facing staff what they want to happen should a federal agency, such as ICE arrive on the premises. At the very least personnel should know who to contact and should be instructed to ask the agency personnel to wait in a particular area until the designated individual can be reached.
In preparation for any request to see employee records, either with notice or without, employers should conduct an audit of their Form I-9 records. A Form I-9 (Employment Eligibility Verification form) must be completed for all employees upon hire. The form is very specific. An audit by ICE will involve whether the form was completed properly by the employer and employee. ICE may fine employers for technical violations and if it appears that wide spread fraud surrounds the forms the employer can be subject to more substantial penalties and criminal charges. For detailed information about how to properly compete an I-9, the United States Citizenship and Immigration Services has a helpful manual, which you can find here.
While SSA Acting Commissioner Nancy Berryhill recently announced to Congress that no action will be taken against employers who did nothing in response to SSA’s March 2019 no-match letters, the President’s recent statements that he will direct federal agencies to work together to share information about the location of individuals who may be in the United States unlawfully, raises serious concerns that there may be additional scrutiny of employer records. For employers it is time to make sure your records are in order.