Multistate Monday: Employment Verification and Immigration Inspections, Part II

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Dee Anna Hays: Hello, everyone, and welcome to another installment of our Multistate Monday podcast series, which focuses on topics that we hope are of interest to our Ogletree clients and friends that operate in multiple jurisdictions across the country. I am Dee Anna Hays, Co-Chair of Ogletree Deakins’ Multistate Advice and Counseling Practice Group, and a shareholder in the firm’s Tampa office. And I’m excited to be joined today by Susan Gorey, who is a senior counsel in our Indianapolis office and is an active member of our practice group, and Susan has been on many podcasts before. Welcome, Susan.

Susan Gorey: Hello and welcome, everybody.

Dee Anna Hays: And we also have as a guest today, Stephanie Generotti, who is an of counsel attorney in the Tampa office, along with me here in sunny Florida. Welcome back, Stephanie.

Stephanie Generotti: Hi, thanks for having me again.

Dee Anna Hays: And Stephanie was kind enough to share with us some knowledge when it comes to the intersection of employment law and immigration, with respect to certain work authorization requirements and potential government audits and inspections that can flow from those requirements. We talked a little bit about E-Verify, which is a federal system that allows employers to confirm a worker’s authorization based on federal records from the Department of Homeland Security and the Social Security Administration. And it really is a second step that builds on the I-9 requirements that are required of all employers. But states can get into the game with respect to which types of employers are mandated to use E-Verify. Is that correct, Stephanie?

Stephanie Generotti: Absolutely. State legislation can vary from state to state, and it’s important to keep focus on how those laws are changing, because it seems like every day a different state is introducing some form of legislation. And as we talked in the last podcast about Florida, introducing a wide-sweeping legislation to require all private employers to use E-Verify regardless of size. So that’s something we continue to monitor and would advise all employers, depending on their state, to do so as well.

Dee Anna Hays: Absolutely, and if you missed that podcast episode, you can certainly go back and listen to part one. And in part one, we also got into the details of non-warrant-based inspections and how to potentially prepare for those. And in this episode, we wanted to pivot and talk about potential encounters with ICE that are warrant-based. So, Stephanie, can you just give us an overview of how a warrant-based inspection is different? Who would conduct them, and what does it look like?

Stephanie Generotti: Absolutely. So, we have, at the last podcast, we talked about civil inspections. There’s not really any sort of judicial or administrative warrant that comes about. In the warrant-based encounters, they’re really focused on trying to locate an individual or a group of people who may be running afoul of the country’s immigration laws. And so, there’s three different types. We have what we call an operational search, or what you would colloquially know as an ICE raid, and then we have an administrative warrant, and we also have a judicial warrant. And so, these are three different kinds of scenarios that you might see or encounter, some ICE agents impolitely knocking on your door to serve these different types of warrants.

Susan Gorey: So, Stephanie, last time we spoke about how the agents would show up in plain clothes. I’m guessing this is a little bit different.

Stephanie Generotti: This one is going to be a little bit different, and obviously, the magnitude of what will happen will depend on what kind of encounter you are going to be faced with, and so it’s important to know the difference between those three for a multitude of different reasons. But you will know it’s a warrant, what we’ll couch as a warrant-based encounter by how the agents appear. They’ll usually have some form of a vest or an identification on them, they might be carrying weapons with them, and there might also be local law enforcement or state law enforcement with them to help facilitate the service of that warrant, depending on the location that the company sits in and the ICE presence that’s available to effectuate that warrant. So, it’s going to feel a little bit more of a strenuous situation and a little more obvious to the company that you’re about to encounter what we are couching as this warrant-based encounter.

Susan Gorey: Okay, so definitely more fearful likely, on behalf of the employees, when someone shows up with local law enforcement and an ICE agent who clearly has a firearm and a protective vest.

Stephanie Generotti: Absolutely, and so given the fear that’s likely going to be associated with this step, it’s important for employers now to recognize and understand the differences between these three types of scenarios for a couple different reasons.
First, really what’s being sought after, right? Not every warrant will have the same purpose. For example, this operational search or ICE raid, is really a search and a seizure of the company’s location, and it’s focused on a broad scope of a people or business. It’s usually like a tip that’s come off that this company is maybe employing a couple different unauthorized people. And so, it’s a lot more strenuous in process. Versus something like an administrative warrant, which is signed by an administrative law judge and not an Article III judge. And so that’s going to usually be going after one specific person, and they necessarily haven’t committed a crime like a murder, an assault, or anything like that; they’re just scheduled to be deported for some particular reason. And then you’ll have this judicial warrant that’s signed by a judge, a federal court judge, and that’s focused on the arrest of somebody who has committed some kind of crime.
So that’s really what’s being sought after, and it will dictate how to respond, and really more importantly, where the agents can go. Do they have to stay within the public area, in the public domain of your business, like a lobby or conference room if you’re waiting for information to come about? Or can they go back into your private spaces? And so, developing a plan and really understanding the differences will help in the event of this fear-typed encounter coming about, and so people know what to do when faced with this unfortunate situation.

Dee Anna Hays: And Stephanie, do you ever see the possibility if there is a more informal or non-warrant-based investigation, and you have someone from the government come out, and the business declines to grant them entry or to give them what they need or to respond, could that lead to an operational search that is warrant-based if the employer chooses not to comply?

Stephanie Generotti: I think at this point and during this administration, with the focus on immigration and immigration compliance, I would say probably anything’s possible. We haven’t seen that, per se. We’ve seen instances in which, tagging back to our last podcast, of an informal drop-in, the designated point of contact wasn’t necessarily as nice to the ICE agent, and then the ICE agent threatened a little more of an audit or a little bit more compliance efforts on that I-9 process. However, if you have an ICE agent there and there’s not necessarily a politeness or a cohesive thought going on, it could lead to further looking into the company and maybe eyeing up, what’s this type of workforce? And it could get you really further down the rabbit hole than you probably want to be.

Dee Anna Hays: Understood. And you had mentioned that it’s important to understand the difference between these three types of potential warrant-based encounters, so that employers can adequately prepare. Can you kind of maybe walk us through each type and some best practices that employers might want to know?

Stephanie Generotti: Yeah, absolutely. So, let’s first talk about administrative warrants. Those are from the Department of Homeland Security. So, whenever, in any of these three instances, your designated point of contact should be phoned or gotten by that frontline employee. In our last podcast, we talked about you have a receptionist or someone who greets people at the door. He or she might not be as versed in what to do, and so that person should know, okay, I need to contact so-and-so in the HR department to help facilitate this process. So, that point of contact should really have an understanding of, what kind of warrant is this?
So let’s say we’ve determined it’s an administrative warrant, which comes from the Department of Homeland Security. This does not require or permit ICE to enter private areas without employers’ permission. So, they can’t go back into a private workspace, into a locker room, into a floor, into private offices. It’s really just, they have to wait in the lobby. They are used to effectuate the deportation of an individual who’s already been deported but not accepted by their home country. That’s usually how we see this happening. So, it’s a little bit less of an aggressive encounter, it’s really just trying to find one individual. An employer is not required to lead ICE to that individual, so going back to that private area, or just to disclose if they’re present, but it’s not great to lie either. So, you don’t want to impede a government investigation. So, it’s really, you got to toe the line and feel it out and see what’s going on. So that’s your little bit more, not lax, but relaxed version of a warrant.
The next one you see is a judicial warrant, that’s going to be signed by a judge on Article III, district court, federal court judge. It might also be a state court judge, and that’s related to one or more employees having engaged in some kind of criminal activity, whether it be an assault, a battery, some kind of driving issue, but that, like a regular search warrant that you would see for any other sort of person who committed a crime, it allows the agents to enter private spaces that are included within the warrant. So, if the warrant says they can go look at a locker or they can go look in the offices, whatever the case may be, they’re allowed to proceed further. An employer should not obstruct an ICE agent in that scenario, because again, that’s the equivalency of obstructing justice, so to speak.
They’re a little less common than your administrative warrants. However, the Trump Administration has been focusing on combating illegal immigration and with a key focus on all of these illegal immigrants are committing these horrific crimes. Whether or not that’s true remains to be seen, but we anticipate an uptick in these judicial warrants that we’ve seen in the past.
And then our last one is an operational search ICE raid. That’s usually something about a tip where there’s a group of unauthorized individuals working. They’ll usually have some kind of federal search warrant for the premises, like a search and seizure, as well as an arrest warrant for people. They’re pretty infrequent, but definitely the most oppressive of the three. And so, it’s important to not obstruct ICE agents in that scenario if they have the proper paperwork, like we’ve discussed.

Dee Anna Hays: And I understand, of course, that tensions could be running high if you have one of these occur at the facility, and I think it’s a great point. And just to remind everyone that you really want to know what you’re dealing with as far as one, even in a tense situation like that, correct me if I’m wrong, but you can require the agent to provide some type of documentation to prove to you who they are. And then you get a little bit of time, at least to actually read the warrant itself, so that you have an understanding of the official scope of what they’re there to do. Is that right?

Stephanie Generotti: Absolutely. The first point of contact that you might see, the frontline employee should of course ask any paperwork you have, any contact information, and I’m going to bring it to the person, the designated individual that I’m to communicate with during this, whether or not the ICE agent refuses to provide it. I mean, stranger things have happened, but they should provide it, and the frontline employee should at least be able to make a copy or at least write some information down if they’re not able to take a copy, in order to facilitate the designated point of contact’s response plan, so to speak. In this situation, these ICE agents should be identifying themselves, providing the paperwork, expressing why they’re there, before really taking any sort of oppressive action.

Susan Gorey: So, that means then before going into the private areas?

Stephanie Generotti: Absolutely.

Susan Gorey: For the frontline employee to unlock the doors so they can get in.

Stephanie Generotti: Absolutely, and a little bit of politeness goes a long way of just saying, “Thank you. I have to contact so-and-so. You’re free to wait right here or free to wait in this conference room,” assuming there’s nothing in there that’s proprietary or concerning. But whether or not they follow those instructions, you can’t force the government agent to do anything they don’t want to do, but that could be handled on the backend. It’s really important to not get in their way, and then if there’s some kind of procedural flaw with their search and seizure, that’s, of course, something that would be handled in due time.

Susan Gorey: Is an employee permitted in the heat of the moment? Because I can imagine how a frontline employee might feel if they come bursting in. Can they pull out their phone and snap a picture of it? Would that be permitted? Of the documentation, what they’re allowing, if they’re saying that you don’t have time to write things down or take notes.

Stephanie Generotti: I can’t envision why it wouldn’t be permitted, whether or not that would anger the agent, maybe. But I can’t envision why if they’re trying to effectuate a government paperwork and they’re on their premises, that would be something that I would say, “Can I?” But ask, right? “Can I take a copy? Can I take a picture so I can get you to where you need to be?” If they say no, and then the frontline employee goes ahead and does it anyway, it could present another problem, but I would at least ask for sure at the outset.

Dee Anna Hays: Stephanie, any other just general tips that employers might want to think about in preparing for an investigation or maybe even having a training or a simulation, whether it’s not solely ICE-based, but maybe for those folks who would be a point of contact on, hey, here’s what you would do if a government investigator shows up?

Stephanie Generotti: Absolutely. I think that the best way to prepare for these is to have a plan. And so, the best way to develop that plan is to really sit down, work through who’s going to be your designated point of contact. And if you’re a large company who’s across multiple states, you might have one in various different regions or states. And then make sure that you’re training your frontline employee or employees, because there might be more than one, as well as that designated point of contact, on these are some types of government encounters. If you are to encounter these people, this is who you should call and who you should communicate with in the event of any one of these number of issues.
And then make sure that for purposes of if one of these encounters happens, after the fact, have some sort of debrief. Remember that the company itself in these situations is usually not the one that they, typically, I mean in an ICE raid they might be, but typically it’s they’re after a person, they’re not really after the business. And so, if one of these encounters happen, make sure that there’s a debrief, write down what happened, and did this go according to the plan or the policies that we have set in place? And if not, how can we modify this to make any kind of encounter in the future? Maybe go a little smoother.

Dee Anna Hays: Well, it’s certainly helpful information. I think it’s given all of us a lot to think about. So, thanks again, Stephanie, for joining us. And again, if you didn’t get to listen to the first episode on civil non-warrant-based inspections, you can check that out. And if you’re interested in these multi-state topics, you can tune in to a future episode of Multistate Monday and follow us with the hashtag OD multi-state. Thank you very much for spending time with us.

Susan Gorey: Thank you, Stephanie, for all the tips.

Stephanie Generotti: Thank you so much, ladies. Appreciate it. Have a great day, everyone.

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