A common theme in Misty Wilson Borkowski’s webinar, “Navigating ICE and DHS Enforcement in the Agricultural Workplace,” was preparation, preparation, preparation.
Borkowski, a partner at Hall Booth Smith, a law firm that specializes in legal counsel to and litigation and regulatory advocacy for farmers and agribusinesses, walked attendees through the nuances of both Department of Labor and Immigration and Customs Enforcement visits to a farm.
The webinar, presented by the National Agricultural Law Center, guided agriculture employers through potential audits and visits as well as the rights employees and employers have in those situations.
Know Who Is At the Gate
Borkowski says farms are often vulnerable to ICE enforcement, with employees working in open fields and housing nearby. However, that doesn’t mean that ICE can immediately have access to the property, she says. While ICE can enter public areas without a warrant, she’s quick to point out that it’s a different story on a grower’s private property.
“They cannot enter into private areas without someone’s consent or without a judicial warrant,” she says. “They cannot force employers to answer questions, and they cannot demand employment-related documents on the spot.”
A key point, though, is to understand there are likely two different scenarios when ICE comes to a farm. The first would be administrative inspections of I-9 documents, which verify an employee’s identity and legal authorization to work in the U.S.
DOL’s Wage and Hour Division could also visit a farm, but that is to enforce minimum wages, child labor laws, overtime issues and enforce compliance with H-2A regulations.
“By virtue of sponsoring H-2A visa workers, you are subjecting yourself to the Department of Labor coming on-site and conducting an inspection,” Borkowski says. “There are limitations on what the Department of Labor can do, but they also have a lot of authority.”
And she clarifies this is when it’s important to understand what agency the government official represents, as those with DOL would need access as part of the H-2A compliance visits.
“That officer, that agent, [with the Department of Labor] can go into the housing because they’re making sure that the H-2A housing is and remains in compliance with those OSHA standards that the employer is subjected to,” she says.
Administrative Versus Judicial Warrants
With administrative inspections, ICE may bring or provide a notice of inspection later. ICE will include a list of documents and information for the employer to provide.
Borkowski says that while those visits are usually even-keeled, she encourages ag employers not to provide that information immediately on the spot, because employers legally have three days to gather the information.
However, it is vital to distinguish these paperwork audits from an enforcement raid. While you have a 72-hour window to produce I-9 folders, a search warrant for the property requires an immediate, though legally limited, response. In the heat of a raid, Borkowski says while an employer might have good intentions in providing information right away to appear cooperative, it’s important to seek legal counsel first.
“Even if the officer is asking for those documents, you are going to have three days to provide those documents,” she says. “What that does is that gives you time to collect your documents, make sure you have everything that is supposed to be provided.”
A lawyer will work with an employer to provide appropriate documents, but only what is asked for and the type of information necessary. Borkowski says this also includes making sure documents that should be shredded from former employees aren’t being retained accidentally.
“Common mistakes that employers may make if they don’t seek legal counsel before they provide the documentation is either overcorrecting or being selective about re-verification and then also panicking and oversharing,” she says. “We want our employers not to do that. And also, you know, by engaging legal counsel in that interaction, you can put a buffer between the employer and ICE. That just has a calming effect for the whole situation to bring that temperature down.”
Training Front-line Staff
Next, Borkowski says it’s important to plan how the team will react if ICE performs an enforcement raid on the farm, and it’s critical for employers to understand their rights. First, employers need to ask, “Who are you?” “Why are you here?” and “Do you have a warrant?”
Employers have a right to review a warrant. Employers also have a right to limit ICE access to private areas. Employers also have the right to remain silent and request a lawyer.
“You can continue to repeat that you are not consenting to anything,” she says. “But you have to know first what your rights are.”
While ICE agents that come to a farm in an enforcement manner could be calm, the agents could also be aggressive and try to push for action and information. The first thing is to ask for a warrant and to check if the warrant is a judicial warrant signed by a judge or if it’s an administrative warrant issued by the Department of Homeland Security.
Borkowski points to a breakdown by the National Immigration Law Center with specifics on the differences between an administrative and a judicial warrant. She says a judicial warrant will be signed by a judge and indicate either a search of a person or items or property. An administrative warrant would be signed by an officer at DHS, but it does not carry the same access as a judicial warrant.
“These administrative warrants, they do not give the officer the right to enter your private area and does not give the officer the right to arrest a specific person, unless that individual is in a public place or if the officer is otherwise permitted to enter into that space,” she says.
Workers, she says, have the right to remain silent. Workers have the right to refuse consent to searches. Workers also have the right to ask for a lawyer and not sign any documents they do not understand. Borkowski points out that while many employees and employers might think it’s a good idea for employees to carry visas and passports while working, she says that could lead to the documents being damaged or lost. Instead, employees could carry a high-quality copy of the H-2A visa.
“Anytime you are faced with someone having a piece of paper that they’re waving around or saying that they have, you have 100% the right — and you should exercise that right — to say, let me see the warrant. I want to review it. I want to read it. I want to see what it is that is being asked of me.”
Protecting Workers and Property
Next, Borkowski says, employers must have a plan in place for what to do if any government agent comes to the farm. This could involve a front office or whoever might naturally have the first line of contact. That person should understand whom to contact within the company, as well as a backup, and there needs to be a discussion of when legal support should be contacted, she explains.
“Let’s have down a written protocol, a written procedure,” she says. “Let’s go through these steps with our front-line staff and train them on how to how to interact, what to do.”
And there could be some physical barriers put up to entry, whether it’s a buzzer system or a key card, so only those authorized have immediate access.
“If it is your private space, then you have every right to protect it,” Borkowski says. “Whether or not you have signage, [it] doesn’t change that. It puts that additional barrier, that additional way of protecting anyone from entering into a space that they should not be in.”
She says businesses in multiple states should also ensure all front-line workers communicate consistently and understand any state-specific laws that could apply.
Then it comes down to practicing this plan. Borkowski says those who would be designated to speak to agents need to rehearse asking for a warrant and understand how to deny consent. This may not necessarily feel natural to those involved, she adds.
“Knowing what your rights are and also second-guessing yourself are just natural, and so the more that you can prepare your people in your sphere, the better everyone is going to be ... when it comes to a point where they have to say, either ‘I’m not authorized or I’m denying you consent,’” she says.
Borkowski says it’s important for employees to stay calm and ask for identification and a warrant. Then, they need to understand the scope of the warrant and what that means in terms of what ICE agents should and should not have access to.
“An ICE officer without a judicial warrant or without your consent should not be entering onto your fields, into your barn, your packing sheds, your warehouses, any offices not open to the public and certainly into your housing,” she says.
Employees designated to interact with any ICE agents need to know and understand what they have to comply with and what they do not.
“If the agent is being aggressive, you have to do whatever you need to, to look at the document and make sure it is one that requires you to comply, and if you do, you comply only with the aspects that are required,” Borkowski says.
If a warrant is to search for somebody, that does not mean the agent can look in the barn or the field. Worker housing is also a private residence, and workers still have Fourth Amendment rights.
Again, she says, this goes back to role-playing within an organization so those designated employees are comfortable responding to the ICE agents in a firm manner.
“Having that individual, having those people on the front line get comfortable with saying, ‘This is above my pay grade. I am not authorized to answer that question. I’m not authorized to give you access to anything. I don’t consent,’” she says.
Borkowski also encourages ag employers to inform and educate all employees on their rights. She suggests employers supply information in the worker’s native language to help them feel more comfortable. And if something does happen on the farm, it’s critical employers communicate with workers, she says.
“You just want to be factual,” she says. “You want to be truthful and honest to them. You want to reassure the workers about their rights, and you want to make sure that they have trusted supervisors that they can contact.”
Don’t encourage employees to run, and don’t ask about their immigration status, she advises. That’s what the workers’ I-9 forms are for.
And then, Borkowski says, in the case where an employee is arrested, document what happens. She says it’s important to understand state laws in terms of what can be recorded, but she also says take notes. Document what you know and see and have employees present also do the same.
“Write down what you observe, but also, if you have other individuals that are part of this, are seeing this, they should also write down what they are observing as well,” she says. “Names, dates, locations, times, and just preserve those records.”
Then communicate with the rest of the employees. Discuss legal options for workers and what the next steps are. This includes contacting an immigration attorney specializing in deportation cases, alerting the family and more.
Plan for follow-up I-9 inspections from ICE. She says just like when DOL makes an H-2A compliance visit, an employer could expect another visit in a couple of years. Borkowski says the same thing will likely happen after an ICE enforcement raid.
The most critical thing an employer can do is have some sort of debrief after an ICE visit, she says. Talk about what worked and what didn’t work.
“You want to address it with your staff and look at: How did everyone react? How did everyone handle this situation? Did we handle it as we had practiced in our practice sessions? ... Is there something we could have done better?” she says.
