Employers may have interactions with ICE in several contexts. This alert provides general advice about preparing for and responding to these situations. Because every situation is different, employers are encouraged to contact counsel proactively to create a plan.
ICE audits and notices of inspection
The first way in which ICE may interact with an employer is an audit, which requires employers to produce I-9 forms and potentially other documents. This is initiated through a “Notice of Inspection.” Employers generally have three days to produce the required information. You can prepare now for this potential by taking some proactive steps, including:
- Performing an internal I-9 audit
- Making sure documents are organized and in one easily accessible place
- Designating and training a team who will interact with ICE on the premises
Workplace raids: preparing in advance
The other way in which you may encounter ICE is a workplace raid. Prepare for that possibility now by:
- Designating one or more company representatives (in case one is not available when the situation arises) to serve as the primary contact with ICE officers
- Training front-facing employees, such as hosts or receptionists, to refrain from any discussion with the ICE officers and to notify the designated representative immediately
- Consider using signage, keycard systems, or shaded windows/partitions to distinguish private areas of the business
Role of the designated representative
Your designated representative should call legal counsel immediately. You can inform ICE that counsel is being contacted and you can request that ICE officers wait until counsel can arrive, depending on how long this might take.
Interacting with ICE Officers
Do not be intimidated by interactions with the ICE officers. You are entitled to certain rights and information, and you can take notes. For instance, your representative can and should:
- Ask ICE officers for identification and document that information
- Ask the officers if they have a warrant, as that will determine where they can go
If the officers do not have a warrant, they are only permitted in your public spaces (i.e., reception area, lobby, parking lot).
If the officers do have a warrant:
- Ask for a copy and read it
- Confirm that it is signed by a judge
- Review the timeframe for the search
- Review the premises to be searched
- Review the documents or items to be seized
Lastly, be sure to provide a copy of the warrant to your counsel, who can advise about whether to contest it.
Searches and seizure of property
If the officers have a warrant and engage in a search of your premises, stay with them and document what they are doing. You can do this by taking notes or using video, but do not interfere with their actions.
You should also:
- Document any items they take
- Ask for copies of the documents before they are removed
- Consult with your counsel if ICE wants to take actual items such as computers, particularly if that would interfere with your ability to conduct your business
Employee interactions during a raid
As ICE moves through your business, several other things may happen. They may ask for access to locked areas. If the warrant covers those areas, you will need to provide access. They may talk to employees. You cannot interfere with this process, and you cannot direct employees to not cooperate with the officers. However, you do not have to assist in the process by volunteering information about employees. You can tell employees that they can choose whether to speak to the officers or not, but do not lie to the officers about whether an employee is there and do not assist employees in hiding or leaving the premises.
After ICE leaves
When ICE leaves, take time to regroup. Make detailed notes about what happened, the agents that were involved, what they looked at, what they took, and who they spoke with.
Consider how you will communicate with your employees about the raid and prepare for media attention.
Final thoughts
This is just a small snapshot of this process. We encourage you to consult with counsel ahead of time so that you can formulate a plan together. This will give you more peace of mind about what might happen, reduce the likelihood of missteps, and ensure the process runs as smoothly and efficiently as possible.
Bernstein Shur’s Labor & Employment Group helps businesses of all sizes build compliant, productive workplaces through practical, real-world solutions. The group provides full-spectrum support on issues ranging from hiring and discipline to investigations, union relations, and employment litigation. Anne-Marie L. Storey is a leading Labor and Employment attorney with more than two decades of experience who advises Maine employers on all aspects of workplace law, including compliance, risk management, employee relations, investigations, and litigation. She can be reached at astorey@bernsteinshur.com.