Small businesses are often on the front lines of immigration enforcement. And that front is heating up.
More than 65,000 people have been arrested by U.S. Immigration and Customs Enforcement (or ICE) since President Trump took office, a nearly 40 percent increase over the same period last year. The agency's acting director, Thomas Homan, has made clear that he's not just going after criminals anymore: "No population is off the table," at home or in the workplace.
So it's not surprising that more than 20 percent of small businesses responding to a CNBC/SurveyMonkey Small Business Survey expect changes in immigration policy to have a negative effect on their businesses. In certain sectors and communities, that sentiment would likely be even higher.
In this environment, it's important that employers understand their basic rights and responsibilities when they encounter immigration agents so they can protect their rights and the rights of all their employees, regardless of immigration status.
Immigration enforcement can affect a business and its employees in several ways. Immigration agents can raid a business, and such raids can target any establishment, from the smallest restaurant to some of the country's largest farms, warehouses and factories. In 2008, for example, a raid of a meatpacking plant in Postville, Iowa, involved helicopters and close to 400 arrests. More recently, in February, a raid of several restaurants in Mississippi resulted in more than 50 arrests. Immigration agents also can target businesses for I-9 audits (employers are required to complete a Form I-9 to verify the work authorization of new hires). And immigration agents will sometimes visit a business looking for specific individuals.
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Unfortunately, we've learned the hard way that ICE agents often abuse their authority and routinely violate people's constitutional rights, whether at people's homes, on the streets or in someone's workplace. A 2009 report looked closely at home raids and found an "unacceptable level of illegal entries by ICE agents during home raid operations in violation of the Fourth Amendment." It found that despite a legal requirement that ICE have some reasonable suspicion before detaining or questioning individuals, the large majority of arrest reports analyzed stated "no basis for the initial seizure." Moreover, the data revealed possible patterns of racial profiling, confirming community complaints that ICE agents targeted individuals "based simply on their ethnic appearance or limited English proficiency."
A little preparation, however, can go a long way in helping employers protect their businesses and employees from the intimidation and disruption of immigration enforcement actions. Employers should prepare a written response plan in advance and practice this response just like businesses prepare for fires with fire drills. Employers should also educate their employees that they have a right to remain silent if questioned by ICE. Any information shared with an ICE agent can be used against the employer or employee, and individuals always have the right to remain silent and ask for an attorney.
From the moment ICE agents arrive at a business' door, the agents generally need a judicial warrant to enter private areas of the premises, such as a back office or restaurant kitchen, where only employees are allowed to enter. A judicial warrant is signed by a state or federal court judge, unlike the "administrative warrants" issued by the Department of Homeland Security that ICE agents sometimes try to use to gain entry into a business. Employers can ask ICE agents if they have a judicial warrant before entering a private area and refuse to consent to their entry if they don't.
Ultimately, while the Trump administration's immigration enforcement agenda has created an uncertain environment for employers and workers, at least one thing is certain: Employers and their employees have rights when it comes to immigration enforcement in the workplace. Employers can and should take steps now to protect those rights and do what's best for their business and their teams.
— By Laura Huizar, staff attorney with the National Employment Law Project in Washington, D.C. In conjunction with the National Immigration Law Center, NELP has just published a new employer guide to immigration rights and responsibilities in five languages.