FROM E-MERGENCY TO E-VERIFY

Steven Cesare, Ph.D.

A seasoned business owner from Virginia called me the other day to let me know that a handful of his employees were just taken from a job site by the U.S. Immigration and Customs Enforcement (ICE) to be processed for deportation. To make matters worse, once the news was relayed back to the office and shared with other field employees, 8-10 of them left their post immediately. Never a dull moment.

To his undying credit, the business owner did not act with any sense of guilt: he did not defend the personal character of the illegal employees who were taken away; he did not levy aspersions toward the ICE officers; and he conveyed resolute confidence that his I-9 Forms were legally accurate, timely completed, and recently audited. That said, his primary obligations were to: address the impact on his organization’s operational staffing needs to get contracted work completed; discuss the event with the remaining members of his organization to calm the palpable sense of hysteria permeating the culture; and calmly prepare his “no comment” response when inevitably confronted by the local media.

Within this context, here are some best practices that should be adopted as pre-emptive readiness.

What to do if ICE arrives in a public area:

Be reminded that anyone, including ICE, can enter public areas of a business without permission.
Public areas include a restaurant; parking lot; lobby, job site, Home Depot, or waiting area.
Being in a public area does NOT give ICE the authority to stop, question, or arrest just anyone.
No one can enter a private area of your business without your permission or a judicial warrant.

What to do during the ICE raid:

Stay calm! Ask workers to stay calm, too. Do not run to the exits. This will make things worse because ICE agents can say that people who are running are likely violating immigration laws.
Tell the truth.
Never defend any employee’s illegal action. Remember, it was the employee who gave illegal documents to you, that you reviewed in good faith according to the I-9 Form Protocol. If asked, you have no “personal knowledge” of any particular employee’s legal work authorization status beyond the I-9 documents s/he provided to you.
When ICE shows you an administrative warrant with an employee’s name on it:
- You do NOT have to say if that employee is working on that day or not.
- You do NOT have to take the ICE agents to the employee named on the warrant.
You do not have to help ICE agents sort people by their immigration status or the native country.
Watch the agents and see if they are complying with the written warrant. If the agents are searching areas not listed in the warrant, object to those searches by voicing your objection and noting it.
If you or an employee is willing, you should video or record what the ICE agents do at your workplace. You may be able to prove the agents violated your rights or the workers’ rights. Save any company surveillance footage taken during the raid.

What if ICE agents try to stop, question, detain, or arrest a worker:

ICE agents may try to stop, question, or even arrest a worker without the proper authority.
The best way for workers to protect their rights is to stay silent and ask for an attorney.
Workers do not have to hand over any IDs or papers to ICE. All workers have this right.
Any information that workers give to ICE can be used against them later.

In response to this startling event, the business owner has made the decision to voluntarily participate in the E-verify system even though it is not required in Virginia, thereby shielding his company from future ICE raids. Currently, Alabama, Arizona, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Utah require most private-sector companies to comply with E-verify standards.

In adopting this pre-emptive course of action, the business owner acknowledged it will likely put his company at a staffing disadvantage against other employers, that he will have to increase his current wage and salary scales, and make adjustments to his company gross margin goals. By the same token, he believes by adopting E-verify, it will elevate the integrity of his company brand against local competitors.

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