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Season 3, Episode 6: Navigating Immigration Enforcement in the Workplace
From Lawyer to Employer: A Shipman Podcast
Takeaways
In this episode of From Lawyer to Employer, host Dan Schwartz is joined by immigration attorney Nina Pelc-Faszcza to discuss the shifting terrain of immigration enforcement under the new presidential administration. With executive orders making headlines and workplace audits on the rise, employers—particularly in education and nonprofit sectors—are wondering about their rights and responsibilities. From I-9 compliance to handling visits from ICE, this episode provides practical guidance to help businesses stay prepared. Tune in for insights and actionable tips on managing immigration-related challenges in the workplace.
Host: Welcome to From Lawyer to Employer, a Shipman podcast, bringing you the latest developments in labor and employment law, offering you practical considerations for your organization. You can subscribe to this podcast on Apple, Spotify, or wherever you listen, thank you for joining us and we hope you enjoyed today's episode.
Dan Schwartz: Welcome back to another episode of the From Lawyer to Employer podcast. I'm your host, Dan Schwartz, a partner in the Labor, Employment and Education group at Shipman & Goodwin. On today's podcast, we're going to dive into immigration in the first few weeks of the Trump administration. Various executive orders have placed immigration enforcement front and center again.
In some ways, this places employers in the crosshairs with some employers, particularly those in the education and nonprofit space, wondering what their obligations and responsibilities are when it comes to enforcement. We've also been hearing questions about what steps they can take to protect themselves and their employees.
So for today, I thought we'd bring in my colleague, Nina Pelc-Faszcza, who handles much of our immigration practice here, representing a wide range of employers on matters relating to U. S. Immigration to really delve deeper into this. So welcome, Nina.
Nina Pelc-Faszcza: Thank you Dan, for having me.
Dan Schwartz: So, before we begin, I'll give a caution to listeners of this where the developments and the executive orders have been happening fast and furious. So, we're not going to try to address each and every one of those that may have happened, but really focus our conversations on a bigger picture of how employers can generally manage this sort of disruptive time here. So, with that being said, let's start the conversation by talking generally - employers normally don't have much to do with immigration, except for I-9s. Do I have that right, Nina?
Nina Pelc-Faszcza: Yeah, that's correct. And I think aside from, responsibilities for any foreign national workers an employer might be sponsoring which has a whole slew of obligations on a fundamental level when, employers, especially those who don't have large foreign national worker populations, their responsibilities first and foremost are for the Form I-9 - which is really, the employer's responsibility to ensure that their workers that they're hiring and continuing to employ have proper identity and work authorization documents, right? So an employee starts work and the employer has a federal legal obligation. To review proper work authorization and identity documents to make sure that, everything is in order.
Dan Schwartz: So, before we talk about the enforcement, let's suppose an employer is listening and going. I'm not sure I have all my I-9 documents done. What do they have to do in on that respect?
Nina Pelc-Faszcza: Yeah, great question. And I think that's important. It's always been important even now more so than ever to think about that. And that's because we're expecting over the next four years for I-9 audits to become more common, right? The federal government can issue - it's called a notice of inspection to an employer - in which case, the employer has a few days to turn over all of their I-9 records for federal inspection, and they could be assessed fines or other penalties for certain violations. So, I would recommend to any employer that it's not a bad idea at this point to self-audit those I-9 files. Pull them - a lot of employers use electronic I-9 storage, which makes it easy to pull them all. Employers with large employee populations can do a sample auditing right rather than reviewing hundreds or thousands of documents.
But pull those records and look at them, and go through that with counsel if you can, right, an immigration attorney. And make sure that the documents are filled out properly and that, the employer also has proper records on file. When mistakes are identified, the employer can fix them. They can take steps to correct them, and those steps are important mitigating factors for an I-9 audit in assessing penalties, right? Employers can avoid harsh fines if they can show that they've taken, good-faith steps to correct any errors that they find.
Dan Schwartz: Yeah, that's a great tip. And those I-9s, those are kept separately from personnel files?
Nina Pelc-Faszcza: Most of the time, I think, yes, a lot of employers now are using I-9 electronic storage records through third party vendors, in which case they're all they're really stored together. It's uncommon for employers these days to have physical I-9s, though I'm sure some of them still do, in which case I do recommend that they're kept together. That way, in the event of an I-9 audit or a self-audit, they're easily retrievable and the employers aren't sifting through individual personnel HR files for, hundreds of employees to pull out the I-9.
Dan Schwartz: Yeah, so keep the I-9s together. That's a great tip. All right so, we've been hearing a lot about the Department of Homeland Security really ramping up their enforcement. So, as employers think about this Is there an opportunity for employers to think about what happens if the Department of Homeland Security is knocking on your door?
Nina Pelc-Faszcza: Yeah, I think first and foremost, while we hope that sort of ordinary places of business won't have ICE, or a DHS officer of any kind knocking at their door regularly or at all - I think the possibility of that happening now has really increased. We've been hearing a lot of reports of businesses receiving visits from ice, all sorts of businesses. Visits might be more popular in certain types of industries and others such as the hospitality industry or the manufacturing industry. My advice to all employers really would be to be prepared for it so that you're not caught off guard and being prepared really means understanding what a visit from ICE, and we can talk about other DHS visits as well, primarily, I think employers are concerned about ICE - Immigration and Customs Enforcement. And so being prepared with some sort of protocol that relevant employees and staff members can be trained on so that they know on a fundamental level, how to get through an interaction with ICE is really important because I think if ICE shows up and you have no idea what to do, that's when, an employer could potentially be taking advantage of, employers and businesses have certain legal rights against ICE coming into their property, which can be very nuanced. And so it's important that employers try to understand and also work with there attorneys to get through the situation.
Dan Schwartz: Yeah, I'm gonna come back to that in a second because I think that's a great point of understanding what the rights are. But I know I had this question and I've heard from others. There was, I think, under the Biden administration and some prior administrations, this notion that certain employers, certain businesses were protected from these types of enforcement policies. But it seems to be going away. Can you help explain like what that is and what the what's going on that respect?
Nina Pelc-Faszcza: Yeah, absolutely. So historically, the Department of Homeland Security had this policy in place, right? It's not a law. It was just a departmental policy of, what to do and what not to do. But they had this policy in place that was reissued under the Biden administration that essentially instructed DHS officers, which includes ICE, not to conduct an enforcement action - the language was you actually should not do this, you should not conduct an enforcement action, which would mean anything from an apprehension to a request for documents or search of the premises that activity shouldn't happen in what are called sensitive or protected areas, which are really locations not necessarily even business locations, but any location where such activity would really impact access to essential services.
And then the memo gave examples, though it wasn't an exhaustive list. So primarily would be a place like a school or other place of education, right? Places where children are gathering: a playground, health centers, hospitals, doctor's offices, churches places of worship, and other places like social services establishments think drug and alcohol treatment facilities. And so the motivation there was we don't want people not seeking these services especially we don't want kids not going to school, people not going to the emergency room because they're afraid of ICE coming and taking them away or questioning them. So that was ICE's policy or the Department of Homeland Security's policy that essentially in order to go into these places, they needed certain inter-agency supervisory approvals to do so under sort of emergency circumstances, right? If there was actually some sort of public health or safety emergency of some kind, that policy was rescinded on day one of the new presidential administration on January 20th, by the then acting Homeland Security Secretary. And I think that leaves those types of businesses and establishments just more vulnerable to ICE activity, though, to be clear they're not being actively targeted.
The memo that came out on January 20th, it's an interesting memo. It basically says, use your discretion with these types of locations, right? So, it still says, keep it in mind, but what's been made clear is that DHS doesn't intend to avoid those locations just because they are sensitive areas. Getting a lot of inquiries from schools and health centers that are, understandably concerned.
Dan Schwartz: Yeah. And so maybe that's a good pivot back to understanding sort of the rights and responsibilities that employers have when ICE in particular comes knocking or sends an unnoticed. What are some of those rights that employers and businesses should know about?
Nina Pelc-Faszcza: Absolutely. So with an ICE visit, the same sort of fundamental principles of law enforcement against unreasonable search and seizure are still what apply, right? So, we need to make a distinction in this case then of public versus private areas, right? And that's it. That holds true whether the business itself is public or like a public school. But the sort of cornerstone of an employer's rights is that it can - it has certain rights against law enforcement coming in without consent in, what we call nonpublic areas of that establishment. And this gets really nuanced for certain types of organizations that may be deemed public accommodations, right?
Like a restaurant, for example, but for your ordinary Sort of private employer, like a private place of business or other employers that are otherwise not open to the public like the front door is locked and you have to have permission to come in, in order for a ICE agent to enter that property to carry out any form of enforcement action without the employer's consent. Which I'm sure many employers are not inclined to give. The requirement is that the agent needs an order a warrant signed by a federal judge issued by a district court and the important thing to get across here is that there is a big difference between that a judicial warrant and what ICE is more likely to have, which is what we call an administrative warrant that would be issued by a federal agency like the Department of Homeland Security.
And an example of an administrative warrant is an order of removal or deportation. And so in the event that ICE is showing up to a place of business because it has an order of removal for someone because they are in the United States without status that document doesn't actually entitle them to enter non public spaces without that establishment's consent.
And I should say to there's always except there's exceptions to every rule, right? And in this case, the exception would be if there was some sort of emergency, right? What we call in the legal field isn't, exigent circumstances. Say they were in hot pursuit of someone who actually did just commit some sort of crime or, people's safety was at risk, something like that. That's always an exception, but generally speaking, employers should understand their rights to protect the private areas, of their premises.
Dan Schwartz: So, if a an officer comes up holding one of these administrative warrants and the employer just say, hey, this doesn't entitle you to come on to our premises and ask them to leave or come back with a proper warrant?
Nina Pelc-Faszcza: Absolutely. Yeah. And of course, we would encourage employers to try and review any documentation that ICE may have with their lawyers, right? Unless, some employers are organizations like schools, for example, might have a law enforcement who are involved someone who has experience with these sorts of documents who could make that determination themselves.
But ordinary organizations and businesses, we really encourage you to try and look at these documents with an attorney so that we can determine, what that document is, but yeah, in the event that the proper, judicially issued documentation does not exist, the organization is well within its rights to ask ICE to leave.
And if ICE comes back with proper documentation, that's a different story. Yeah, but not required to let them in at that point.
Dan Schwartz: I'm hoping a few people listening will decide I need to put Nina on speed dial on this because this isn't necessarily something that has been front and center to some employers.
What else should employers be thinking about in terms of their rights and responsibilities in this area?
Nina Pelc-Faszcza: Primarily, I think employers should focus on being prepared in terms of getting a protocol in place and providing training to the relevant individuals who would be responsible for interacting with ICE if they did show up.
So, for a small employer, that might be everyone who works in the building. For a larger employer or somewhere like a school or a health center with, dozens or hundreds of individuals on premises, there should be some sort of designated response team where if ICE shows up, the individuals who sit in the front office or are responsible for checking visitors in, they should know who to call.
For example, our school that the superintendent of the school is probably who is going to be in charge of action or business, right? An office manager, for example, and that individual then should know call us or your counsel immediately. Someone who can try to get involved. Of course, counsel isn't always necessarily going to be available in the heat of the moment, so it's important to, if you can have contacts for multiple attorneys who can help you, that way you're not reliant on one individual, and then beyond that, the response team.
Should be trained and know at a high level how to direct the interaction with ICE, right? An attorney is not always going to be able to be there physically present with you, right? Our clients aren't always down the street and ICE isn't always going to wait for an attorney to be present. So it is important that individuals who are on premises can self-direct the visit as best as they can, an attorney might be able to be on the phone to help direct. But again, we can't always be available all the time. So training is critical.
Dan Schwartz: And you mentioned before about consent. There's no obligation on an employer to consent. The government can't retaliate against you just for not consenting to something right?
Nina Pelc-Faszcza: No, legally. No, that's correct. No, no one's you're not required to let them in. Just like an ordinary citizen is not required to let law enforcement into their home without the proper legal documentation, right? This holds true for organizations and businesses as well.
Dan Schwartz: Now you mentioned this for sort of private areas, for public areas of establishment, like a lobby or a waiting room or even outside, like a parking lot - employers, as I understand it, really can't interfere with ISIS agents in those areas. Is that a fair?
Nina Pelc-Faszcza: Yeah, they can't and they shouldn't. I think one of the big concerns from the business organizational perspective when interacting with ICE is obstruction of justice charges which are more likely to be taken seriously, with this administration, I think, and so interfering or getting in the way in some regard with lawful ICE activity, it is can be a federal crime.
And so, if you know you don't want to be the employee who refuses to let ICE in, even though they have proper documentation or the employee who comes and tries to save your co worker or patient, or student outside in the parking lot and, you get in trouble for that. And we all have these instincts to want to protect the people that we care about, whether those be family members or for an organization, students, patients, customers, anything like that, but, businesses and organizations should keep in mind that there is risk for them to get too involved. So, another reason why understanding your protocol and talking with a lawyer is really important because, where that line is, that line can be a bit gray, right? And it's going to depend sometimes on the circumstances. Have it having a better sense of where that line is going to be really critical for a lot of employers.
Dan Schwartz: Yeah, I've heard it described, I think, by you and as it's not really the organization's job to protect employees or relevant populations. It's really to ensure that the laws being followed in an appropriate way. And I really remember that and it's, I think, critical to understand the employers role in this, which is not to obstruct, but to make sure that the laws being followed directly. So I thought that was a great tip as we wrap up here. Are there any sort of other tips, maybe keeping some records of visits or other things that employers should keep in mind?
Nina Pelc-Faszcza: Yeah, absolutely. And in the context in which you know, a nice officer is actually either permitted to come into the building or they have the proper legal documentation to be able to legally come in without consent.
It's critical that whoever is in charge Of that ICE visit from the organization's perspective, right? So that response team that I keep talking about that they pay really close attention to what's going on and that includes accompanying the agent around the facility if a search is part of the enforcement action, right?
They might want to search the facility. They might need to have access to certain documentation. And, the employer should keep a close eye on things just to do their best, right? Again, it might not be perfect, but to do their best to ensure that whatever is taking place during this visit is exactly what the warrant says is supposed to be taking place. You want to make sure, okay, if they're here for, John Doe or Jane Doe and that's all they're here for. And they're not also snooping around in other areas and looking for other people. Or if they have a, court order for XYZ documentation that they're not rifling through other things, employers can feel free to take photographs. They can object to certain actions of the officer. Again, though, objecting is different than obstructing, right? Understanding those lines. And so just being generally aware. Also, always make sure that you check the ID of the officer who comes in first to make sure that they're actually, a federal law enforcement officer.
There's been an unfortunate scenario in the news lately of someone impersonating an ICE officer and that can cause a lot of trouble. So do your best to verify the ID. Yeah, and just generally, be on your toes, be paying attention. Take detailed notes and that way you can report back to your attorney afterwards and make sure that everything went according to plan.
Dan Schwartz: Yeah, no, thanks, Nina. Nina and others within our firm have been posting about this on an immigration resource center, and I would highly recommend that site. It's at shipmentgoodwin.com/immigrationresourcecenter. All one word. So with that, Nina, thanks for joining us.
Nina Pelc-Faszcza: Thank you, Dan, for having me.
Dan Schwartz: And that will wrap up another episode of the From Lawyer to Employer podcast. As always, please feel free to subscribe to the podcast wherever you get your podcast. Feel free to drop me or Nina a line. I'm at dschwartz@goodwin.com. Love to hear from you about what you think of the podcast. What are some topics you'd like to see us cover in the future?
This is a busy time for employment law and immigration law in particular. We'll try to give you all the tips that we can, but in the interim, feel free to reach out to us and we'd love to hear from you. Thanks again for listening and we'll see you the next time.
Host: Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast.
This podcast is produced and copyrighted by Shipman & Goodwin, LLP, all rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice. This may be deemed advertising under certain state laws. Subscribe to our podcast on Spotify, Apple Podcasts, or wherever you listen.
We hope you will join us again.
Nina Pelc-Faszcza: Thank you Dan, for having me.
Dan Schwartz: So, before we begin, I'll give a caution to listeners of this where the developments and the executive orders have been happening fast and furious. So, we're not going to try to address each and every one of those that may have happened, but really focus our conversations on a bigger picture of how employers can generally manage this sort of disruptive time here. So, with that being said, let's start the conversation by talking generally - employers normally don't have much to do with immigration, except for I-9s. Do I have that right, Nina?
Nina Pelc-Faszcza: Yeah, that's correct. And I think aside from, responsibilities for any foreign national workers an employer might be sponsoring which has a whole slew of obligations on a fundamental level when, employers, especially those who don't have large foreign national worker populations, their responsibilities first and foremost are for the Form I-9 - which is really, the employer's responsibility to ensure that their workers that they're hiring and continuing to employ have proper identity and work authorization documents, right? So an employee starts work and the employer has a federal legal obligation. To review proper work authorization and identity documents to make sure that, everything is in order.
Dan Schwartz: So, before we talk about the enforcement, let's suppose an employer is listening and going. I'm not sure I have all my I-9 documents done. What do they have to do in on that respect?
Nina Pelc-Faszcza: Yeah, great question. And I think that's important. It's always been important even now more so than ever to think about that. And that's because we're expecting over the next four years for I-9 audits to become more common, right? The federal government can issue - it's called a notice of inspection to an employer - in which case, the employer has a few days to turn over all of their I-9 records for federal inspection, and they could be assessed fines or other penalties for certain violations. So, I would recommend to any employer that it's not a bad idea at this point to self-audit those I-9 files. Pull them - a lot of employers use electronic I-9 storage, which makes it easy to pull them all. Employers with large employee populations can do a sample auditing right rather than reviewing hundreds or thousands of documents.
But pull those records and look at them, and go through that with counsel if you can, right, an immigration attorney. And make sure that the documents are filled out properly and that, the employer also has proper records on file. When mistakes are identified, the employer can fix them. They can take steps to correct them, and those steps are important mitigating factors for an I-9 audit in assessing penalties, right? Employers can avoid harsh fines if they can show that they've taken, good-faith steps to correct any errors that they find.
Dan Schwartz: Yeah, that's a great tip. And those I-9s, those are kept separately from personnel files?
Nina Pelc-Faszcza: Most of the time, I think, yes, a lot of employers now are using I-9 electronic storage records through third party vendors, in which case they're all they're really stored together. It's uncommon for employers these days to have physical I-9s, though I'm sure some of them still do, in which case I do recommend that they're kept together. That way, in the event of an I-9 audit or a self-audit, they're easily retrievable and the employers aren't sifting through individual personnel HR files for, hundreds of employees to pull out the I-9.
Dan Schwartz: Yeah, so keep the I-9s together. That's a great tip. All right so, we've been hearing a lot about the Department of Homeland Security really ramping up their enforcement. So, as employers think about this Is there an opportunity for employers to think about what happens if the Department of Homeland Security is knocking on your door?
Nina Pelc-Faszcza: Yeah, I think first and foremost, while we hope that sort of ordinary places of business won't have ICE, or a DHS officer of any kind knocking at their door regularly or at all - I think the possibility of that happening now has really increased. We've been hearing a lot of reports of businesses receiving visits from ice, all sorts of businesses. Visits might be more popular in certain types of industries and others such as the hospitality industry or the manufacturing industry. My advice to all employers really would be to be prepared for it so that you're not caught off guard and being prepared really means understanding what a visit from ICE, and we can talk about other DHS visits as well, primarily, I think employers are concerned about ICE - Immigration and Customs Enforcement. And so being prepared with some sort of protocol that relevant employees and staff members can be trained on so that they know on a fundamental level, how to get through an interaction with ICE is really important because I think if ICE shows up and you have no idea what to do, that's when, an employer could potentially be taking advantage of, employers and businesses have certain legal rights against ICE coming into their property, which can be very nuanced. And so it's important that employers try to understand and also work with there attorneys to get through the situation.
Dan Schwartz: Yeah, I'm gonna come back to that in a second because I think that's a great point of understanding what the rights are. But I know I had this question and I've heard from others. There was, I think, under the Biden administration and some prior administrations, this notion that certain employers, certain businesses were protected from these types of enforcement policies. But it seems to be going away. Can you help explain like what that is and what the what's going on that respect?
Nina Pelc-Faszcza: Yeah, absolutely. So historically, the Department of Homeland Security had this policy in place, right? It's not a law. It was just a departmental policy of, what to do and what not to do. But they had this policy in place that was reissued under the Biden administration that essentially instructed DHS officers, which includes ICE, not to conduct an enforcement action - the language was you actually should not do this, you should not conduct an enforcement action, which would mean anything from an apprehension to a request for documents or search of the premises that activity shouldn't happen in what are called sensitive or protected areas, which are really locations not necessarily even business locations, but any location where such activity would really impact access to essential services.
And then the memo gave examples, though it wasn't an exhaustive list. So primarily would be a place like a school or other place of education, right? Places where children are gathering: a playground, health centers, hospitals, doctor's offices, churches places of worship, and other places like social services establishments think drug and alcohol treatment facilities. And so the motivation there was we don't want people not seeking these services especially we don't want kids not going to school, people not going to the emergency room because they're afraid of ICE coming and taking them away or questioning them. So that was ICE's policy or the Department of Homeland Security's policy that essentially in order to go into these places, they needed certain inter-agency supervisory approvals to do so under sort of emergency circumstances, right? If there was actually some sort of public health or safety emergency of some kind, that policy was rescinded on day one of the new presidential administration on January 20th, by the then acting Homeland Security Secretary. And I think that leaves those types of businesses and establishments just more vulnerable to ICE activity, though, to be clear they're not being actively targeted.
The memo that came out on January 20th, it's an interesting memo. It basically says, use your discretion with these types of locations, right? So, it still says, keep it in mind, but what's been made clear is that DHS doesn't intend to avoid those locations just because they are sensitive areas. Getting a lot of inquiries from schools and health centers that are, understandably concerned.
Dan Schwartz: Yeah. And so maybe that's a good pivot back to understanding sort of the rights and responsibilities that employers have when ICE in particular comes knocking or sends an unnoticed. What are some of those rights that employers and businesses should know about?
Nina Pelc-Faszcza: Absolutely. So with an ICE visit, the same sort of fundamental principles of law enforcement against unreasonable search and seizure are still what apply, right? So, we need to make a distinction in this case then of public versus private areas, right? And that's it. That holds true whether the business itself is public or like a public school. But the sort of cornerstone of an employer's rights is that it can - it has certain rights against law enforcement coming in without consent in, what we call nonpublic areas of that establishment. And this gets really nuanced for certain types of organizations that may be deemed public accommodations, right?
Like a restaurant, for example, but for your ordinary Sort of private employer, like a private place of business or other employers that are otherwise not open to the public like the front door is locked and you have to have permission to come in, in order for a ICE agent to enter that property to carry out any form of enforcement action without the employer's consent. Which I'm sure many employers are not inclined to give. The requirement is that the agent needs an order a warrant signed by a federal judge issued by a district court and the important thing to get across here is that there is a big difference between that a judicial warrant and what ICE is more likely to have, which is what we call an administrative warrant that would be issued by a federal agency like the Department of Homeland Security.
And an example of an administrative warrant is an order of removal or deportation. And so in the event that ICE is showing up to a place of business because it has an order of removal for someone because they are in the United States without status that document doesn't actually entitle them to enter non public spaces without that establishment's consent.
And I should say to there's always except there's exceptions to every rule, right? And in this case, the exception would be if there was some sort of emergency, right? What we call in the legal field isn't, exigent circumstances. Say they were in hot pursuit of someone who actually did just commit some sort of crime or, people's safety was at risk, something like that. That's always an exception, but generally speaking, employers should understand their rights to protect the private areas, of their premises.
Dan Schwartz: So, if a an officer comes up holding one of these administrative warrants and the employer just say, hey, this doesn't entitle you to come on to our premises and ask them to leave or come back with a proper warrant?
Nina Pelc-Faszcza: Absolutely. Yeah. And of course, we would encourage employers to try and review any documentation that ICE may have with their lawyers, right? Unless, some employers are organizations like schools, for example, might have a law enforcement who are involved someone who has experience with these sorts of documents who could make that determination themselves.
But ordinary organizations and businesses, we really encourage you to try and look at these documents with an attorney so that we can determine, what that document is, but yeah, in the event that the proper, judicially issued documentation does not exist, the organization is well within its rights to ask ICE to leave.
And if ICE comes back with proper documentation, that's a different story. Yeah, but not required to let them in at that point.
Dan Schwartz: I'm hoping a few people listening will decide I need to put Nina on speed dial on this because this isn't necessarily something that has been front and center to some employers.
What else should employers be thinking about in terms of their rights and responsibilities in this area?
Nina Pelc-Faszcza: Primarily, I think employers should focus on being prepared in terms of getting a protocol in place and providing training to the relevant individuals who would be responsible for interacting with ICE if they did show up.
So, for a small employer, that might be everyone who works in the building. For a larger employer or somewhere like a school or a health center with, dozens or hundreds of individuals on premises, there should be some sort of designated response team where if ICE shows up, the individuals who sit in the front office or are responsible for checking visitors in, they should know who to call.
For example, our school that the superintendent of the school is probably who is going to be in charge of action or business, right? An office manager, for example, and that individual then should know call us or your counsel immediately. Someone who can try to get involved. Of course, counsel isn't always necessarily going to be available in the heat of the moment, so it's important to, if you can have contacts for multiple attorneys who can help you, that way you're not reliant on one individual, and then beyond that, the response team.
Should be trained and know at a high level how to direct the interaction with ICE, right? An attorney is not always going to be able to be there physically present with you, right? Our clients aren't always down the street and ICE isn't always going to wait for an attorney to be present. So it is important that individuals who are on premises can self-direct the visit as best as they can, an attorney might be able to be on the phone to help direct. But again, we can't always be available all the time. So training is critical.
Dan Schwartz: And you mentioned before about consent. There's no obligation on an employer to consent. The government can't retaliate against you just for not consenting to something right?
Nina Pelc-Faszcza: No, legally. No, that's correct. No, no one's you're not required to let them in. Just like an ordinary citizen is not required to let law enforcement into their home without the proper legal documentation, right? This holds true for organizations and businesses as well.
Dan Schwartz: Now you mentioned this for sort of private areas, for public areas of establishment, like a lobby or a waiting room or even outside, like a parking lot - employers, as I understand it, really can't interfere with ISIS agents in those areas. Is that a fair?
Nina Pelc-Faszcza: Yeah, they can't and they shouldn't. I think one of the big concerns from the business organizational perspective when interacting with ICE is obstruction of justice charges which are more likely to be taken seriously, with this administration, I think, and so interfering or getting in the way in some regard with lawful ICE activity, it is can be a federal crime.
And so, if you know you don't want to be the employee who refuses to let ICE in, even though they have proper documentation or the employee who comes and tries to save your co worker or patient, or student outside in the parking lot and, you get in trouble for that. And we all have these instincts to want to protect the people that we care about, whether those be family members or for an organization, students, patients, customers, anything like that, but, businesses and organizations should keep in mind that there is risk for them to get too involved. So, another reason why understanding your protocol and talking with a lawyer is really important because, where that line is, that line can be a bit gray, right? And it's going to depend sometimes on the circumstances. Have it having a better sense of where that line is going to be really critical for a lot of employers.
Dan Schwartz: Yeah, I've heard it described, I think, by you and as it's not really the organization's job to protect employees or relevant populations. It's really to ensure that the laws being followed in an appropriate way. And I really remember that and it's, I think, critical to understand the employers role in this, which is not to obstruct, but to make sure that the laws being followed directly. So I thought that was a great tip as we wrap up here. Are there any sort of other tips, maybe keeping some records of visits or other things that employers should keep in mind?
Nina Pelc-Faszcza: Yeah, absolutely. And in the context in which you know, a nice officer is actually either permitted to come into the building or they have the proper legal documentation to be able to legally come in without consent.
It's critical that whoever is in charge Of that ICE visit from the organization's perspective, right? So that response team that I keep talking about that they pay really close attention to what's going on and that includes accompanying the agent around the facility if a search is part of the enforcement action, right?
They might want to search the facility. They might need to have access to certain documentation. And, the employer should keep a close eye on things just to do their best, right? Again, it might not be perfect, but to do their best to ensure that whatever is taking place during this visit is exactly what the warrant says is supposed to be taking place. You want to make sure, okay, if they're here for, John Doe or Jane Doe and that's all they're here for. And they're not also snooping around in other areas and looking for other people. Or if they have a, court order for XYZ documentation that they're not rifling through other things, employers can feel free to take photographs. They can object to certain actions of the officer. Again, though, objecting is different than obstructing, right? Understanding those lines. And so just being generally aware. Also, always make sure that you check the ID of the officer who comes in first to make sure that they're actually, a federal law enforcement officer.
There's been an unfortunate scenario in the news lately of someone impersonating an ICE officer and that can cause a lot of trouble. So do your best to verify the ID. Yeah, and just generally, be on your toes, be paying attention. Take detailed notes and that way you can report back to your attorney afterwards and make sure that everything went according to plan.
Dan Schwartz: Yeah, no, thanks, Nina. Nina and others within our firm have been posting about this on an immigration resource center, and I would highly recommend that site. It's at shipmentgoodwin.com/immigrationresourcecenter. All one word. So with that, Nina, thanks for joining us.
Nina Pelc-Faszcza: Thank you, Dan, for having me.
Dan Schwartz: And that will wrap up another episode of the From Lawyer to Employer podcast. As always, please feel free to subscribe to the podcast wherever you get your podcast. Feel free to drop me or Nina a line. I'm at dschwartz@goodwin.com. Love to hear from you about what you think of the podcast. What are some topics you'd like to see us cover in the future?
This is a busy time for employment law and immigration law in particular. We'll try to give you all the tips that we can, but in the interim, feel free to reach out to us and we'd love to hear from you. Thanks again for listening and we'll see you the next time.
Host: Thank you for joining us on this episode of From Lawyer to Employer, a Shipman podcast.
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