As immigration enforcement actions continue to take a front row seat in the headlines and across the country, it is critical for employers and employees to understand their roles and rights if U.S. Immigration and Customs Enforcement (ICE) comes to the workplace.
The Importance of a Warrant
Oregon’s status as a “Sanctuary State” does not prevent the federal government from enforcing its laws within a state’s borders. As a result, federal agencies often conduct workplace searches and arrests independently in Oregon without assistance from local law enforcement. When federal agents arrive, they are restricted to public areas unless they either obtain the employer’s consent or present a judicial search warrant. Because agents may present one of two types of documents, it is important for employers to understand the scope of authority each one grants.
- Judicial warrant. Agents may present a judicial warrant and request to be permitted entry into the workplace. There are two kinds of judicial warrants: search warrants and arrest warrants. A judicial search warrant is the only kind of warrant that permits agents to enter a private space. If an agent presents a judicial arrest warrant (but not a search warrant) they must wait in a public area. A valid judicial search warrant will include a court designation, a judge’s signature, a specific address and a defined time frame for the search. Employers should review the warrant carefully to understand exactly what it authorizes because permission for an arrest does not give permission for a search. Employers can also make a photocopy (or take a picture) of the warrant for their records.
- Administrative warrant. In some cases, federal agents may present an administrative warrant instead of a judicial warrant. Unlike judicial warrants, administrative warrants are not signed by a judge and do not bear a court designation. While an administrative warrant authorizes agents to make an arrest, it does not permit them to enter private areas of the workplace without the employer’s consent.
What to Do and Say During an Immigration Action
In addition to understanding the different types of warrants, it is equally important for employers to know what they—and their employees—can and cannot do and say. Interfering with the actions of ICE or Department of Homeland Security (DHS) agents can carry serious legal consequences even if one believes the agents are acting improperly. Therefore, employers and employees must not attempt to obstruct or interfere with enforcement activities. If ICE or DHS agents enter the workplace, employers may ask the agents for their warrant and inform them of what spaces in the workplace are private. Remember, agents cannot enter private spaces without a judicial search warrant or the employer’s consent.
Here are some other things to consider:
- Employees and employers are not required to answer agents’ questions. If an agent asks an employee about the whereabouts of another employee, no one is required to go find that employee or even tell the agents whether that employee came to work for the day.
- Along those lines, employers and employees may choose to remain completely silent throughout the visit.
- If they feel comfortable doing so, staff may take video footage or photos during an immigration action.
- Employers may document what the agents are doing when they enter the workplace. For example, if an agent is searching a space under the authority of a judicial search warrant, employers may document if the agent acts outside the bounds and scope of the search area.
- When agents leave, employers should write down everything they can remember while the memory is still fresh.
- If ICE makes an arrest, ask agents where the arrestee is being taken and document their response.
Private and Public Spaces
For employers, understanding the distinction between public and private spaces is essential to responding appropriately during immigration enforcement actions. A private space is any area where there is a reasonable expectation of privacy. Examples include examination rooms, break rooms and bathrooms. In some cases, even open spaces like cubicles can be considered private if they are behind physical barriers like doors, buzzers or gates.
In contrast, areas that are generally open and accessible without permission such as parking lots, lobbies or foyers are typically considered public spaces. Employers can proactively prepare for enforcement actions by clearly marking private areas with signs, locks or other physical indicators that distinguish them from public spaces.
Designate a Representative
In addition to designating spaces, employers should consider designating a representative to speak for the organization in the event ICE or DHS visits. This individual should be well-trained in identifying warrants, understand the rights of the federal agency and the rights of the employees and should maintain a calm demeanor. Designating and training an individual in advance of a visit will provide some peace for anxious employers and employees.
Abby Fitts is an attorney at Barran Liebman LLP where she represents employers on a wide range of employment issues. For questions, contact her at 503-276-2190 or afitts@barran.com.
Xavie Davenport is a law clerk with Barran Liebman LLP where she partners with attorneys in client trainings, legal research and the drafting of employment policies and handbooks.
