Last week, federal and local law enforcement raided a construction site in Tallahassee looking for immigrants who are in the country illegally. The video was stunning as law enforcement dressed in military-like uniforms pulled more than 100 workers off the job site.
Until recently, such raids of businesses were rare in Florida unless the business was blatantly abusing the immigration system. Yes, there have always been audits and other tools to ensure state and federal statutes were enforced, but large, public displays of immigration officials entering businesses are relatively new
As these types of raids increase, it’s vital that your business understands what is required of you under immigration laws and what will be needed to be done if immigration officials show up at your business unexpectedly.
Much like any crisis planning for your business, you hope you never have to use such a plan, but if you do, being prepared will make a difference in the worst-case scenario.
If your business is in Orlando, Altamonte Springs, Seminole County Winter Garden, Kissimmee or all of Central Florida, the attorneys at The Orlando Law Group can help put together the plans and policies to ensure your business stays within your legal rights, along with working to help lessen the impact if you are approached by immigration officials.
Make sure you are handling the onboarding of employees correctly
The first step of any immigration issue is to ensure you have taken all the proper steps in onboarding any new employee.
For all businesses, this includes having any new employee fill out the form I-9, where the employee verifies they are a citizen of the United States or have the legal right to work in the United States.
The I-9 process is fairly simple, but it requires the employee to provide one or two forms of identification from a long list of documents. Indeed has a great list found here. These records must be kept on file, as they will be needed if your business is ever audited.
It is also our recommendation that any documentation with I-9 forms be kept in separate files from the rest of the employee files. This allows them to be easily accessed in case of an audit, but also does not risk other employee information being provided if not requested by a warrant.
In Florida, for many businesses, there is an additional step – using the federal E-Verify system. If your business has 25 or more employees, is a public entity or contracts with a public entity, you are required to use the system found here.
According to the Florida Department of Revenue, an employee is defined as an individual filling a permanent position who performs labor or services under the control or direction of an employer that has the power or right to control and direct the employee in the material details of how the work is to be performed in exchange for salary, wages, or other remuneration.
The term “employee” does not include:
- An individual hired for casual labor that is to be performed entirely within a private residence
- An independent contractor, as defined in federal laws or regulations, hired to perform a specified portion of labor or services
You can find more information on what the state of Florida requires on its E-Verify fact sheet.
ICE may still come to your door
Despite all the efforts you make to follow the law, there is no guarantee that immigration enforcement won’t come to your business to check your immigration status. For instance, officials may have uncovered that some of the identification documents provided by the employee were fraudulent, causing a visit by law enforcement.
When that happens, it is important that you have developed a plan and have shared this plan with all employees. While it certainly will be scary – that’s part of the intention of the raid – you and your employees have rights provided under the Constitution.
There are several key terms to understand that you will need to know.
First, if they are asking to review your I-9 documentation and have the proper paperwork for an audit, you have three days to comply and provide your records to immigration. In that case, take the audit request and let them know you will deliver the records to them in the proper timeframe.
Second, if they are pushing to enter the building or your office, you must allow them to enter any area where the public is admitted.
For a restaurant, that means agents can enter the seating area or any other areas where guests are allowed to go. If you are in an office, that means they can come in the front lobby – if you allow anyone to come in that entrance.
They cannot enter private areas where the public is not allowed.
For instance, a hotel must allow immigration officials into the lobby, bar or hallways, but they do not have to be let into the laundry room or the maintenance shed or the executive offices.
One simple step to take in this regard is to put up “Employees Only” or “No Public Allowed” on those areas.
If immigration officials try to say they can enter a private area, it is important that employees stand firm, requesting to see the warrant that allows them to enter private areas.
Understand the difference between a judicial warrant and an administrative warrant
When dealing with immigration issues, not all warrants are equal, however, law enforcement has no legal obligation to clarify the types of warrants. If they say they have a warrant and you let them in, you have given them consent.
The warrant that most people think of when it comes to warrants is a judicial warrant. That’s when law enforcement appears before an impartial judge and presents evidence of a potential crime and the need for a warrant.
When law enforcement shows a judicial warrant, your business is required to let them go wherever they would like.
To make sure it is a judicial warrant, look for two things: A signature from a judge and a court listed on the top of the warrant.
If neither of those is on the paperwork, it is an administrative warrant, and the immigration officials are only allowed to be in public areas.
Administrative warrants are focused on the individual who is accused of being in the United States illegally. They are not always administered by a “neutral and detached” magistrate, as there are fifty-two immigration officer categories expressly authorized to issue arrest warrants for immigration violations, as well as “other duly authorized officers or employees of the Department of Homeland Security or the United States who are delegated the authority.”
Therefore, an administrative warrant does not allow the same access to private areas. An administrative warrant is identifiable by being issued by an immigration officer/federal agency, and/or will be found on a form I-205 or I-200.
It is not as easy to get a judicial warrant as it is an administrative warrant, but law enforcement has no obligation to explain the difference to you.
That’s why the first step when any law enforcement, including immigration officials, comes to your business that you call your attorney, who can review any documents and help instruct you on your rights.
If the immigration officials ask questions or try to push an employee, it is important that the employees are trained to say they are not authorized to speak to law enforcement or immigration officials and nothing else.
It is also important to record with video any interaction with immigration officials. Stay back from the officials, let them know you are recording and do not interfere. This is part of the documentation process. And everything should be documented in this case.
Finally, you are under no obligation to help immigration officials. So, if they ask for John Doe employee, you are not required to get the employee or share that they are there if they are in a private area of the business.
Why interfere with law enforcement actions at all?
To be clear, under no circumstances should any employee block law enforcement. Hopefully, the agents will work with the employees and follow applicable rules, although there have been instances recently where law enforcement is not been cooperative.
If they refuse or are moving toward a target because of a triggering event, the employee needs to let them proceed and allow the attorney to look at any protection or future action.
Remember, any immigration enforcement actions could result in significant legal actions against your business. The construction company that was raided by ICE is now undergoing a federal investigation into its employment practices. And, if you don’t follow the law, resulting in a wrongful detention of one of your employees, you could be subject to a lawsuit.
The attorneys at The Orlando Law Group can help your business prepare for any business law or immigration law, including ICE raids in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.