ICE Audit: Are You and Your Employees at Risk?
A Note From The Editor
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Two years ago, Tom Cat Bakery in Queens, N.Y., was known for supplying artisanal breads to some of the most exclusive restaurants in New York City. But an immigration controversy last spring created a different kind of notoriety for the company -- the kind that no entrepreneur wants.
In short, an audit conducted by Immigration and Customs Enforcement (ICE) led to the dismissal of 21 immigrant employees from the bakery.
Some of Tom Cat’s employees and advocacy groups, such as Brandworkers, a non-profit organization for food workers, believed the dismissals were improperly handled, sparking a local and national outcry that led to protests, bad press and boycotts of Tom Cat Bakery bread from famous restaurants such as Le Bernardin. For its part, Tom Cat Bakery says it acted appropriately.
Meanwhile, immigration agents conducted audits and inspections of more than 100 7-Eleven franchises across the country earlier this year and ICE’s acting director has vowed to quadruple worksite enforcement in 2018.
If you are a small-business owner with immigrants on your staff, here's what you need to do to protect your workers and your business from the special challenges these new enforcement policies present. [Note: ICE did not respond to Entrepreneur.com's request for comment on this story.]
Be I-9 audit ready.
Legally, immigration agents may come to your workplace to check if you followed the rules for Form I-9, which confirms a worker's identity and authorization to work in the U.S. So it's important that you keep I-9 forms on file for three years after hiring or one year after the worker's last day of work, whichever is later, according to Laura Huizar, a staff attorney for the National Employment Law Project (NELP). Huizar also advises that you only ask a worker to fill out the I-9 once unless their work permit is about to expire or you have another valid, legal reason. "Employers cannot just re-verify employees at any time. There has to be a reason," she says.
Protect your privacy.
While ICE can audit your company (request I-9 forms for all employees), the agency is not permitted to search your offices without warning unless there is a warrant signed by a judge. Tom Cat says it was under subpoena and had to comply with ICE.
To prevent improper searches at your business, be sure to designate which areas are public and which are private in your workplace, Huizar says. She adds that ICE can enter public spaces of a business without a warrant (such as the dining area of a restaurant), but other private areas such as the back office, kitchen or factory are off limits. She advises posting signs in the private areas and making sure that only employees and employers are allowed to enter those areas at all times.
Teach your staff their rights.
If ICE tries to enter a private area of your business without a warrant, your employees are legally permitted to deny entry, according to Huizar. She advises them saying, "I can't give you permission to enter. You must speak with my employer." She also suggests training your staff not to interact with ICE agents. If the agents have questions or requests, "workers should say nothing, or say, 'You are not allowed to enter. Talk to my employer.'" You should give your employees a list of lawyers or organizations, such as NELP or the National Immigration Law Center (NILC), that can provide high-quality, free or low cost legal advice, she says.
Make a written response plan.
"Sit down and think through what you want to happen," Huizar says. "Then write down a plan ahead of time that works for you and practice what to say and what to do with your workers like a fire drill."
If your company is under ICE audit, Brandworkers Director Daniel Gross urges businesses to let employees know immediately to give them proper time to prepare. Huizar agrees. "We recommend in any situation where there is audit that employees are notified immediately," she says. "Immigration laws are so complicated. It's crucial to give them a chance to figure out what is going on and speak to their own attorneys about how to rectify the situation."
Negotiate a fair severance.
In the event that you have to let an undocumented worker go, Huizar offers the following suggestions: Pay workers any owed wages and any accrued benefits as soon as possible when employment ends. Provide separation pay to workers who cannot return to work and need to support themselves and their families. "Understand that they are going through a very stressful and complicated situation," she says.
Tom Cat says that it negotiated a severance package with the baker's union "that included everything the union asked for." Part of that package provided "a guarantee that workers who demonstrated the appropriate legal status within six months could return to their job at the same pay rate and the same seniority," according to Tom Cat. One of the employees affected by the dismissal has returned to work, the company said.
Editor's note: The original version of this story stated that Tom Cat Bakery employees were only given 10-days notice to provide documentation. While that was the Department of Homeland Security’s initial requirement, Tom Cat Bakery sought an extension. Jean Georges Restaurant Group was cited as one of the restaurants boycotting Tom Cat Bakery, but it's unclear if that's the case. Jean Georges could not be reached for comment. The story misstated that Tom Cat Bakery gave ICE documents without proper legal authority. A subpoena was issued. The story represented Tom Cat Bakery’s severance package as being “minimal,” without taking into account the actual package.