President Trump had a busy first several days in office, and we fully expect him to conduct a number of high-profile workplace enforcement efforts to target undocumented workers and the businesses that hire them. We have asked our firm’s Immigration Practice Group co-chair, Jocelyn Campanaro, to weigh-in on some pressing immigration questions that QSRs may face in the coming weeks.
Q: What should QSRs generally expect when it comes to operating under a second Trump Administration?
A: You should be fully ready and prepared for a renewed focus on immigration enforcement. President Trump’s “Border Czar,” Tom Homan, will drive immigration enforcement strategy, which will likely include a repeat of the “zero tolerance” policy he championed during the previous Trump Administration. Homan has consistently advocated for workplace enforcement to target undocumented workers and the businesses that hire them and has stated that U.S. Immigration and Customs Enforcement (ICE) will target public safety threats first—but will eventually pursue non-criminal, undocumented workers and the employers that harbor them. The recent Executive Orders that were issued since inauguration day are all in line with this staunch stance towards immigration enforcement.
Q: What is the most common way QSRs may interact with immigration enforcement officials?
A: An ICE audit, where an ICE officer will issue a Notice of Inspection—either by mail or hand delivery—which requires employers to produce I-9 forms and additional records within three days.
Q: What happens if, through the course of the audit, ICE identifies unauthorized workers?
A: You will receive a notice of suspect documents, giving a window to clarify or terminate the employment of any worker whose documentation does not meet standards. You should work with a qualified immigration attorney when addressing potentially deficient documentation so that you take the right steps in confirming and remedying the documentation.
Q: Is there anything QSRs can do to be proactive and prepare for an ICE inquiry?
A: Yes, we recommend you prioritize these important compliance steps.
- Establish I-9 Compliance: Ensure every employee hired after November 6, 1986, has a complete and properly filled out Form I-9 on file. Use payroll records to verify that all required forms are on hand. Train your managers and HR staff on how to complete I-9 forms, recognize document issues, and take appropriate action if they suspect an employee may lack proper work authorization.
- Conduct Regular I-9 Audits: Regularly auditing I-9 forms is key to identifying and remedying any discrepancies. Work with immigration counsel to conduct periodic, thorough audits will help ensure that your records are accurate and up to date.
- Consider Using E-Verify: Although not mandatory for all employers, using the E-Verify system can bolster compliance and demonstrate due diligence in verifying employee work eligibility—and perhaps even provide you a safe harbor or a ticket to reduced penalties if a violation is found.
- Monitor State Law(s): Be aware of any state laws pertaining to work authorization, such as mandatory E-Verify, and ensure compliance and policy updates.
Q: What about all the ICE raids we are hearing about in the news?Could this happen to us?
A: Yes, ICE can actually show up at a place of business to conduct a raid. An ICE agent may appear at your business with a judicial warrant, allowing them to search the premises and/or seize documentation, property, or people. It is important for your organization to establish a “Rapid Response Plan” to be deployed at moment’s notice when ICE comes knocking at the door. You should designate a trained “raid team” to handle ICE visits, including contacting immigration and employment counsel, monitoring compliance with warrants, and tracking actions taken by ICE agents. Fisher Phillips has created a Rapid Response Team for DHS Raids that employers can contact to ensure that they have all the resources needed to properly handle the raid as well as minimize disruption to businesses.
Q: What else should QSRs know if ICE shows up to conduct a raid?
A: If ICE agents show up to conduct a raid, here are the steps we recommend to stay compliant while at the same time minimizing the disruption and operational risks.
- Request and Examine the Warrant: Verify the search warrant’s validity, ensuring it is issued by a federal court and signed by a judge. Immediately provide a copy to legal counsel. If ICE officials have a search warrant when they come knocking on your door, they will take the position that they are entitled to immediate access to your premises and records. There is no three-day period to gather documents, and ICE agents will not wait for your attorney to arrive before commencing their search.
- Review the Scope of the Warrant: Try to keep the ICE agent within what is outlined as permissible activity. This may mean providing access to certain listed areas or documents, but not giving access to other areas and items that are not listed or requested.
- Monitor but Don’t Interfere: Assign a representative to observe and document ICE’s actions while maintaining a cooperative stance. Do not obstruct or engage in hostile actions, which could worsen legal outcomes.
- Avoid Actions that Could be Construed as Harboring: Instruct managers not to hide employees, shred documents, or provide false information. Employees should be free to speak to ICE agents if questioned but are not required to do so without legal counsel.
- Document and Report Seized Property or Records: Track all items and information taken by ICE and share this information with legal counsel immediately.
- Manage Public Relations: In reaction to the raid, determine whether a public statement is necessary and consider working with your communications team to limit risks and minimize exposure.
Our Rapid Response team has attorneys qualified to assist in all areas that are impacted or required from an ICE raid. You can email DHSRaid@fisherphillips.com or call the hotline at 877-483-7781.
Courtney Leyes and Emily Litzinger are employment lawyers at Fisher Phillips where they regularly partner with restaurant industry clients to minimize liability and reduce risk with preventative strategies focused on compliance, training, and the implementation of best practices. Having both worked in the industry, they understand the delicate balance restaurant employers face when managing a diverse and ever-changing workforce in today’s complex legal landscape.
