Immigration enforcement has been a top priority under the Trump Administration. Audits and raids of workplaces by Immigration and Customs Enforcement (ICE) are at an all-time high. Although some employers knowingly violate U.S. immigration laws, most of the time employers are unaware they are hiring or employing undocumented immigrants. These employers can be severely impacted by ICE audits and raids if they are not prepared and do not know their rights and obligations when ICE does show up.
To avoid liability and ensure that you are complying, you should ensure that you have protocols in place to properly handle any ICE visits or requests.
First and foremost, automotive dealers should be aware that ICE can enter any public area — for example, the showroom or lot — without any kind of warrant. If ICE officials enter a public area and encounter an undocumented immigrant, they can take that individual into custody. ICE also may speak to employees in the public area. The employer may inquire as to what is going on but cannot interfere with ICE’s actions.
Private areas, such as service areas and offices, however, are a different story. Without a judicial warrant, ICE does not have the right to enter private areas or speak to employees in those areas. The officers will sometimes have “ICE warrants,” which are agency documents regarding the arrest and detention of an individual that have not been reviewed by a judge. These “warrants” carry no legal authority and do not give ICE the right to enter any private work areas. Thus, if confronted with this situation — in the absence of a judicial warrant — you are under no legal obligation to comply with demands of entry into the non-public area of the dealership.
Even a judicial warrant may not give ICE the authority to search a business. An arrest warrant for an individual only allows them to arrest that individual. While the employer should cooperate and try to summon the individual, an arrest warrant alone does not authorize ICE to search the dealership for the individual. For that, ICE would require a search warrant.
Given these distinctions, if ICE arrives at your dealership with a warrant, you should carefully inspect it to determine whether it is an ICE warrant or a valid judicial warrant that has been signed by a judge and contains the correct information. This determination is the first step in the process of identifying and understanding exactly what obligations you have.
You also should verify the scope of the warrant: i.e., determine if it allows the ICE officer only to arrest someone, search the premises, or question people. You also should not consent to a search. Although consent is not required to carry out the terms of the warrant, consent to a search can expand what the officers can do beyond the warrant’s scope.
If the warrant does allow ICE to enter and/or search private spaces, obtain the names of the officers and supervising agent and call an attorney. A company representative should accompany the ICE officer through the premises and take note of all actions and statements made by the officer, although the company’s rep should not mislead, impede, or interfere with the officer’s actions. Employees also should not speak to ICE officers unless directed to do so by the warrant. If an officer questions an employee without authorization, the employee should direct the officer to the designated company representative. To ensure this is properly handled and to minimize worksite disruption, you should designate representatives for this purpose and ensure that they are coached on the proper actions. With ICE’s renewed focus on workplace enforcement and push to remove undocumented workers, it is ever more likely that ICE will come knocking at your dealership in the near future.
To avoid liability and ensure that you are complying to the best of your knowledge, begin by reviewing your I-9 files and policies. Ensure that you have properly completed and documented I-9s for every employee hired after November 6, 1986.
You also should ensure that you have protocols in place to properly handle any ICE visits or requests. While these actions will not prevent an ICE raid or audit — or even automatically uncover undocumented workers — they will limit your potential liability.
David Jones is a partner in the Memphis office at Fisher & Phillips LLP. He has practices exclusively in the area of immigration and related employment and compliance matters.