Article contributed by Valerie Bluth, Ellenoff Grossman & Schole LLP
As the reality of the Trump administration’s threat to deport undocumented immigrants en masse continues to take shape, hospitality businesses remain prime targets for a visit from U.S.
Immigration and Customs Enforcement (“ICE”) agents looking to inspect the business’s I-9 forms and search for undocumented immigrants.
It is imperative that hospitality employers be prepared for potential ICE raids to protect both the business and its employees – and the best time to do so is before ICE agents make their way through your front door (or your loading dock or back door or side door).
Hospitality employers should conduct an I-9 self-audit to ensure the business has a complete and correct I-9 for each current employee and those former employees whose I-9s the employer is required to keep. Hospitality employers should also train managers to respond appropriately if ICE does make a surprise visit.
I-9 Audits
The purpose of the I-9 form is to demonstrate that an employer has verified both the employee’s identity and authorization to work in the United States.
Employers must ensure that all parts of the Form I-9 are properly completed, as the employer may face penalties and fines if the form is not completed or is completed incorrectly.
The form looks simple enough, but is nonetheless prone to errors. An I-9 self-audit – conducted by the business or by legal counsel – allows employers to identify any areas of non-compliance and make corrections as needed.
In conducting a self-audit, common I-9 errors to look for include that the:
- Employer or the employee listed information in the wrong box
- Employee did not fill out Section 1 completely, or at all
- Employer accepted unacceptable documents or Section 2 is incomplete
- Employee’s work authorization document has expired and the I-9 has not been updated
- Form is unsigned or undated
If errors or omissions are identified, the employer should correct the I-9 in accordance with U.S. Citizenship and Immigration Services (“USCIS”) guidance, available at U.S. Citizenship And Immigration Services – i-9-central.
As the determination of whether a correction is required and the procedure for correction can be complex, consultation with legal counsel is recommended.
Preparing Managers for an ICE Raid
Even if your I-9s are in order, and even if none of your employees are undocumented immigrants, there is still a distinct possibility that ICE agents will come knocking.
Beyond ensuring I-9 compliance, a suggested preventative step is to put up signs denying access to private areas, such as those saying “no trespassing,” “private” or “employees only.” But, doing so is not a silver bullet and you should still prepare managers and employees for a visit from ICE.
ICE agents show up at a business either with no warrant, an administrative warrant or judicial warrant. The obligation to let the agent into your premises (or to stay on your premises if they have already entered the premises) depends entirely on whether the agent presents a warrant and, if so, what kind.
The first thing a manager should ask if an ICE agent appears is “do you have a warrant?” If the agent says yes, the manager should ask what kind of warrant it is and also to see the warrant.
Non-management employees should be instructed to refer an ICE agent to a manager, and not to talk to the agent themselves.
Only a judicial warrant, which will say “United States District Court” at the top and is signed by a federal judge, allows ICE agents to enter and search the premises (including non-public areas), seize documents or property, and arrest any undocumented people they find.
If the agent presents a judicial warrant, management should cooperate with the agents but need not “consent” to the search.
By contrast, if the agent presents only an administrative warrant, or no warrant at all, the agent is not authorized to search the premises or enter into non-public areas and can be told to leave.
Neither managers nor any other employees have to answer the agents’ questions or give identification or papers to ICE (though employees should not run for the exits!).
Regardless of the type of warrant an ICE agent presents, or whether they present one at all, managers should document the activities of ICE agents while on the premises, including by taking a photo of any warrant presented.
Managers can also take photos or videos of the agents’ activities. Even if the agent tells the manager to stop, the manager is not breaking the law – though the agent may attempt to convince them otherwise.
It is, however, of the utmost importance that no manager or other employee physically obstruct an ICE agent.
It is essential to promptly consult with legal counsel to determine additional steps to take, if any, in response to the agents’ actions.
The business should also ensure that all employees receive their regular wages for the time spent on the premises, even if they are not actively working during the raid.
Tipped employees should be paid the full minimum wage without the tip credit, unless they actively served customers during the raid.
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In sum, hospitality employers should take proactive steps to avoid adverse consequences in the event ICE targets their business..
Valerie Bluth is a Partner in the Labor & Employment Group at Ellenoff Grossman & Schole LLP. For more than ten years, Ms. Bluth has exclusively represented and advised clients in employment-related matters, with a particular focus in the hospitality industry.
Above all, Ms. Bluth works tirelessly to ensure clients are in compliance with an ever-changing landscape of federal, state and local employment laws, especially with respect to pay practices and employment policies, and to devise practical solutions for any employment problems that might arise.
Ms. Bluth can be reached at (212) 370-1300 or vbluth@egsllp.com.
