How to protect your undocumented employees

Before they (Immigration and Customs Enforcement) show up:

Remind your employees that ICE agents are only allowed in public places, unless they have a judicial warrant. This means that employees can always go to an “employee only” room in the business, and the agents cannot legally follow them. (This doesn’t mean they won’t.)

If ICE appears at your place of business, these are the steps you can take to protect your employees.

Ask to see their ID. Write down their names and badge numbers.

Have your phone handy to record/video any interactions. You can designate a United States citizen/employee to do this.

You do not have to allow them access to any nonpublic place unless they have a warrant signed by a judge. Real warrants will say “Warrant of Removal/Deportation,” “Warrant for Arrest of Alien,” or a “Search Warrant” – all must be signed by a judge.

If they ask for a specific person by name, you are under no obligation to deliver them. You can say, “Let me go see if they’re here.”

If they ask to go into nonpublic areas, you may say no, and you can withdraw your consent to search at any time.

If they question your employee in a public area, remind your employee that they have the right to remain silent. They do not have to answer any questions, including about their immigration status, their country of origin or their name or Social Security number. (They have been known to arrest citizens, too.) Generally, employees should not answer any questions until they are with a lawyer. They can ask: “Am I free to go?”; “Am I being detained?”; “Do you have a warrant?”

If ICE has a judicial warrant, is it valid? It must have these elements. Arrest warrants, however, only need 1-3.

1. It must have the specific person’s name on it.

2. It must be signed by a judge.

3. It must be served within the time limit allowed on the warrant.

4. What is the scope of the warrant? (What may they search/seize?)

5. Does it have your specific address?

6. Get a copy of the judicial warrant, and obtain the name of the supervising agent and the name of the U.S. attorney assigned to the case.

If a search or arrest is being made, do not block or interfere. Do not conceal employees, aid in their escape, provide false or misleading information, deny the presence of the employee or shred documents. If they ask you for your I-9 audit, you have three days to hand it over. You have a right to oversee any search and document everything that occurs.

Again, you can remind employees of their right to remain silent. Also, they have the right not to move if asked to stand in groups according to their immigration status. They have the right to leave the building calmly, but fleeing in a conspicuous manner could provide cause for detention. They should not lie or show false documents.