ICE raids are back in the news, and employers should prepare for the effect a raid can have on their business.  In the last forty five days, ICE raids have occurred in at least twelve Texas cities.  Nationwide, companies, either knowingly or unknowingly, continue to hire undocumented workers on a widescale basis.  The construction industry tops the chart with 13.7% of its workforce being undocumented, followed by the agricultural (12.7%), hospitality (7.1%), general services (6.5%), wholesale trade, transportation and warehousing (combined 11%), and manufacturing (5.4%) industries.  It follows that an ICE raid can put a serious dent in a business’ operations.  So, how does one prepare for a raid?

To start, it is helpful to know that ICE can only enter a business’ work areas only if those areas are open to the public, such as retail store shopping areas, restaurant seating areas, reception areas, and the like.  ICE can only enter private, non-public areas of a business, such as warehouses, manufacturing areas, and offices if it has a judicial warrant signed by a court judge.  Such a warrant must specify the specific areas to be searched and the time period in which the search must occur.

Without a judicial warrant, ICE can only enter the public areas of a business unless the owner consents to their request to enter the non-public areas.  Giving consent is not advised.  Frequently, ICE will present an administrative warrant that is usually issued by the Department of Homeland Security.  Administrative warrants do not authorize ICE to enter non-public areas although they will act as if they have that right.  Administrative warrants also do not require a business to bring any person to an agent or to tell an agent that a person is working that day.  If ICE presents an administrative warrant and requests to enter a non-public area, they should just be politely told that access will be allowed when a judicial warrant is presented.  No records should be given unless a warrant is presented that specifically identifies the records sought.

Employers should be aware that ICE agents can lie without any consequence.  Beware of statements such as, “I’m here because I’m looking for this one person.  Can we look to see if he’s here?”  If you allow this, you have just given consent to enter the private areas of the business and search the premises.  ICE agents should not be allowed in the private areas for any reason without a judicial warrant, and then only to the extent specified in the warrant.

There are a number of things that businesses can do to prepare for an ICE raid and minimize the impact.  First, businesses should have a written response plan in place that, among other things, (i) identifies a management level point person who is capable of managing the response without being intimidated, (ii) sets forth the names and contact information for all persons who should be notified of a raid (management, attorney, staffing agencies, etc.), (iii) a description of the publicly accessible areas that ICE can enter without a warrant, (iv) a description of how ICE agents should follow company sanitation and safety requirements if entering an area where safety and sanitation are concerns, (v) instruction that no person has to answer any questions, and that they should remain silent during the raid, and (vi) the steps that should be taken to document the raid.  Second, businesses should maintain accurate I-9s for their employees (and conduct periodic audits), and use services such as E-Verify to assure that they are only hiring authorized workers to the greatest extent possible.  Finally, they should educate their work force as to what employees are required to do during a raid and what they are not required to do.

The possibility of an ICE raid should be taken seriously due to the effect it can have on operations.  A raid could halt operations which in turn could lead to breach of contract claims and financial losses due to project and other delays.  A raid can also lead to fines assessed against the business as a result of hiring undocumented workers if they have not complied with immigration laws. As with most things, knowing your rights and being prepared will lead to the best possible outcome.