The news has been filled with reports on the current focus on immigration, including workplace enforcement conducted by Immigration Customs and Enforcement (ICE). Beyond preparing for potential agency actions or review, employers must also consider broader legal compliance issues – both before and after immigration enforcement.
Comply with the Law
If you have an agency visit you should comply with the legal directives of the agency, including ICE, and provide documentation and access as required by law. However, in some instances, certain documents are necessary to assure legal protection for you as the company. This can include receiving a copy of warrants and subpoenas, you may also need to address issues such as state or federal confidentiality laws which may apply to certain forms of documentation. If the request is for patient information, HIPAA would apply. Student information is governed by FERPA which provides generalized protection for all student information absent something such as a court order. There are also other state and federal requirements regarding the privacy of documentation and information.
However, once that information has been accessed as part of an agency action, such as an ICE visit, you as the employer need to make sure that you lock it down post agency access. A raid of any type will generate employee interest, and you have the potential for other employees to access or look at the records out of pure curiosity. This type of access, which is more than minimum necessary, can be considered a violation of laws such as HIPAA or FERPA. You need to have policies and practices in place to minimize inappropriate internal and external access as well as to evaluate or audit records to make sure that access is not occurring.
As an employer, you may also need to plan for critical staffing shortages. For certain highly sensitive functions or places where staffing ratios are required by law (healthcare), the loss of five or six employees can put you in violation of the law. This is particularly true in industries such as long-term care where ratio requirements (the number of employees to the number of filled beds) are specific and strict. It can also create issues for the Payroll Based Journal (PBJ) process in long-term care.
Payroll
Even if an employee is detained or arrested due to immigration violations, that employee is still owed their wages for any hours worked. For a nonexempt employee, this would be the hourly wages and any bonuses or premiums. For an exempt employee, if it is an initial or terminal week, they would receive their salary payment through the time they left employment.
If you, as an employer, primarily do electronic processing of payroll, that check can continue to be deposited into the existing account. If you are an employer who does paper checks, it becomes a little more problematic as the employee may not be available to pick up the paper check. In many states, checks cannot be handed over to someone if there is no clear authorization in the employee’s file that they are the appropriate person to pick up a check. In Iowa, it requires written employee authorization for any payroll check to be picked up by a third party. Depending on your workforce, or the likelihood that employees do not come back to work regardless of an ICE action, you may want to have a process by which you have all employees issue consent if they are unable to return to work to demonstrate that you have done your due diligence. It does not matter if an employee is not legally authorized to work. They still have to be paid their earned wages and benefits.
Unclaimed property
If an employee is detained or arrested, you may have property belonging to the employee on your premises. That property will need to be held for a certain period of time and eventually if it remains unclaimed there is a state-based process by which you can turn the property over to the state. See this article about unclaimed property.
Status of the employee
Are they terminated or on a leave of absence? If an employee is arrested or detained, it is possible they will be released due to a mistake. There could have been a misidentification or inaccurate information provided which resulted in the arrest. You, as a company, will need to make a determination as to whether or not you will consider this a temporary leave of absence for a period of time such as until additional information can be received or if you are going to treat it as an automatic termination event. In general, in many instances, it would be preferable to wait for a period of time before considering the employee terminated to hopefully make sure that no mistakes or errors have occurred rather than simply terminating people who may all belong to a specific national origin to avoid a discrimination claim.
Company compliance
It is appropriate for human resources to evaluate processes and practices in relationship to compliance such as through a complete review of your Form I-9 program and assessment of your recruiting practices. The best option is to avoid issues rather than manage them once they have occurred. Also remember that constructive knowledge is “knowledge” for I-9 compliance purposes and whether a concern about your workforce is founded on any facts that could lead the government to think that you “knew” workers were unauthorized. If proved, this is a much more serious situation, leading to higher fines and even criminal penalties.
NLRA Section 7
Consistent advice from a variety of sources is that it is important to comply with agency and legal requests about your employees. A strong suggestion is that you have a clear line of reporting and authority that employees direct law enforcement to a specific person or persons who can answer questions. You can have a policy that all public statements are made exclusively by the designated company personnel.
The flip side of this – in many instances, if there is a raid or anything else that seems exciting, employees will film, post on social media, and discuss these issues outside of the workplace. This type of discussion and posting could be considered to be a discussion of the “terms and conditions” of employment under Section 7 of the National Labor Relations Act (NLRA).
Employees are allowed under the NLRA to discuss things that happen at work, particularly as it relates to pay, work status, conditions and similar items. While it is important to have a clear line of communication and demarcations for who can make official statements, there may be unofficial statements from your employees through social media and in other venues. In order to avoid any Section 7 issues, those employee statements need to be carefully assessed before disciplining because of a violation of the existing policy and communication plan.
Whistleblowing
Employees who post about an ICE raid or other issues, and then are disciplined or terminated for those actions, might claim that they were whistleblowers. Whistleblowing is embedded in a number of statutes and in some states, like Iowa, there is a common law claim for whistleblowing if it’s determined that the employer is violating the intent and purpose of an existing statute.
In light of the whistleblowing issue, employers need to be careful when they look at training or disciplining employees who may have reported potential immigration violations. Employees certainly can be counseled to follow the appropriate procedures and give the employer the opportunity to resolve and evaluate problems, but a claim of whistleblowing is always a potential concern.
Discrimination and harassment
Discrimination and harassment issues are twofold. Employees who are subject to close scrutiny or evaluation due to their ethnic origin or nationality can claim that they are being discriminated against in their workplace and that the conduct is harassment. This can also be true of co-employee conduct on social media and even outside of work social interactions if the employee feels that it carries over into the workplace.
Recent EEOC guidance on harassment states that out of work conduct can, in some instances, be considered harassment in the workplace and employers will need to evaluate any concerns or complaints regarding behavior of this type. Additionally, the employee who is raising the issue claiming that someone may not be legally authorized to work or making some formal report could also claim to be harassed based on the fact that they are not a member of that ethnic group or nationality and are being treated differently because of their own nationality.
Responding to internal complaints
If someone makes a complaint that they believe that someone is not legally authorized to work, all such complaints need to be taken seriously and evaluated by the employer. This could include a review of the Form I-9 or I-9 process as well as a discussion with the employee who is accused. You would follow the same policies and processes you have for any other allegation.
Workers’ compensation
Employers should not encourage or instruct employees to impede law enforcement when they are executing a warrant, delivering a subpoena or engaging in similar activities. If an employee attempts to bar law enforcement from entering the premises and the employee is injured, this could result in workers’ compensation claims as well as a variety of other legal and compliance issues.
However, separate from the issue of physical injury, if employees witness others being arrested and law enforcement is brandishing firearms, they could struggle emotionally or mentally in relation to witnessing these events. Depending on the nature and type of your workforce, and the type of industry and employer that you are, you may need to consider post-action counseling or other ways to address any concerns raised by your employees. This can mean everything from meeting with the employees to discuss what happened and the actions that you take as an employer to ensure that your workforce is legal to making counseling available for these employees.
COBRA
If they are covered by health insurance, they and others who are on insurance will need to be evaluated for a COBRA notice. COBRA can be declined in some instances, including egregious misconduct , but if the practice of the company is to offer COBRA regardless of conduct – you would need to determine if that should continue.
Internal and external communications
In a world where everyone carries a video camera in their pocket, you need to think about your communication plan before, during and after any type of ICE enforcement action. How will you communicate with your employees? How will you address misinformation that is likely to be spread? How will you address people who violate your internal policies regarding communication and other behaviors? All of those things are important in terms of how you move forward after an issue.
