By Greg Freeman
Healthcare employers should be fully prepared for a renewed focus on immigration enforcement, which likely will include a significant number of high-profile workplace immigration raids, says Jessica T. Cook, JD, partner with the law firm of Fisher Phillips in Atlanta.
President Trump’s “Border Czar,” Tom Homan, has consistently advocated for workplace enforcement to target undocumented workers and the businesses that hire them, she notes.
With the likelihood of federal agents visiting healthcare facilities increasing in the coming months, Cook says it is crucial for healthcare employers to know their rights and the rights of their employees.
Cook offers this summary:
- Employers have the right to call a lawyer.
- They also can ask for a copy of the warrant and inspect it carefully.
- If it is an administrative warrant (issued by Department of Homeland Security/ Immigration and Customs Enforcement [ICE]/Customs and Border Protection), access to non-public areas can be denied.
- If it is a judicial warrant (issued by a federal court and signed by a judge), then ICE can access and search private areas.
- Employers can have at least one company representative follow each agent around the facility. The representative may take notes.
- The employer can note any items seized and ask if copies can be made before they are taken.
- An employer’s representative may watch ICE agents to ensure they are complying with what is written in the warrant.
- The employer can object to any searches outside the scope of the warrant and keep note of any such instances and any materials seized in those instances.
- Employers can protect privileged materials by requesting that attorney-client documents not be inspected by the agents unless or until you are able to consult an attorney.
- If items being seized are critical business documents or will affect the ability to continue operations, the employer can request alternatives or accommodations.
- Employers can ask for a copy of the complete inventory list of items seized during the search.
Employees and patients also have important rights when they are targeted by immigration agents, Cook says. They include these rights:
- Remain silent and refuse to answer questions.
- Request to speak to an attorney.
- Refuse to hand over any identification or papers to ICE.
- Refuse to comply if ICE asks them to do something like group themselves by immigration status.
Agents Allowed in Many Areas
ICE agents are allowed in public areas, such as parking lots, waiting rooms, or lobbies without a judicial warrant, Cook explains.
“But without a judicial warrant, the agents cannot harass employees or patients or interfere with your operations,” she says. “ICE can only enter a private space with a judicial warrant or consent.”
With the proper service of a valid judicial warrant and the implantation of its search, Cook says ICE is allowed to:
- demand that business operations stop and that no one leave the premises without permission;
- move employees into a contained area and proceed with questioning them;
- seize items listed in the warrant; and/or
- detain and/or take employees into custody.
Cook says healthcare employers should provide staff trainings with an emphasis on employee and patient rights during an ICE worksite raid or encounter.
“They should also establish what we call a ‘Rapid Response Plan’ to educate their employees on the organization’s response protocol for an ICE visit,” Cook says. “Such a plan 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.” Cook’s firm has even been advising employers to practice for an ICE visit just like they would for a fire drill.
Steps When ICE Arrives
If ICE agents show up to conduct a raid, Cook recommends these steps 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 to your business, 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, Cook explains.
- Review the scope of the warrant and 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 do not 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.
Healthcare employers risk significant civil and even criminal fines for failure to comply with immigration regulations, Cook notes. Penalties for Form I-9 violations can reach up to $2,789 per form. Knowingly hiring undocumented workers can lead to fines of up to $5,579 for first offenses — but up to $27,894 per worker for repeat offenders, Cook says.
Criminal penalties also can be substantial. Managers and business owners could face up to 10 years in prison and fines up to $250,000 for actions considered “harboring” or concealing undocumented workers, Cook says. Upon conviction of any federal felony, the Criminal Asset Forfeiture statute allows a jury to authorize seizure of all assets used in the commission of the crime and all proceeds of the crime.
“And beyond the money, ICE raids can halt business operations, damage morale, and lead to public relations issues,” Cook says.
Source
- Jessica T. Cook, JD, Partner, Fisher Phillips, Atlanta. Telephone: (404) 240-4151. Email: jcook@fisherphillips.com.