Content Below is reposted from: https://aflcio.org/reports/we-will-defend-and-resist
This toolkit seeks to equip labor and community organizers, advocates and law practitioners with the necessary information to navigate escalating attacks on immigrant workers and their families. Under the previous administration, worksite enforcement mainly was pursued through I-9 audits, or “silent raids,” in which Immigration and Customs Enforcement (ICE) agents review an employer’s I-9 records for irregularities and target individuals for enforcement based on that information. However, in the current political climate, we expect a return of more aggressive workplace enforcement actions, including raids that result in the immediate arrest of workers.
As such, this toolkit will explain the processes and players involved in worksite enforcement, and provide resources and guidance on how to prepare for and respond to a raid or audit. We have provided many useful sample materials to help inform and equip worker advocates, including sample immigration-related contract language and responses to “no-match” letters from the Social Security Administration, as well as sample letters for advocates and union officials, and other helpful resources.
It must be noted that the most current regulations and rulings at the time of publication are the basis for the recommendations in this toolkit, but the immigration enforcement and policy landscape is shifting quickly in the new administration. This toolkit provides only general information; you should consult legal counsel about any specific issues or questions that may arise. The AFL-CIO will work to update this information as new developments unfold, and will stay in active communication with advocates and organizers on the ground in order to understand how we can be most effective in defending workers’ rights in the context of evolving worksite enforcement practices.
By providing these resources in a single toolkit, we hope labor organizers and advocates may be better prepared to tackle the many challenges that arise in their efforts to help immigrant workers assert their labor rights and gain a voice on the job.
A: Federal law requires employers to complete the I-9, Employment Eligibility Verification, form for every employee to confirm those employees have permission to work in the United States.1 Violation of these laws can mean thousands of dollars in civil fines or criminal penalties for employers. A “paper raid” occurs when Immigration and Customs Enforcement (ICE) investigates a workplace by reviewing employment records and questioning employees about their status. While audits most commonly result in employer fines and termination of workers with paperwork discrepancies, ICE also can detain workers or put them into deportation proceedings—which is why audits often are described as “paper raids.”2 See Appendix A for a list of acceptable documents for employees to present.
A: ICE audits are a formal process in which employers are required to submit their employment authorization records for verification by the agency. Generally, ICE audits begin with a Notice of Inspection that usually gives employers three business days to produce all I-9 records, along with supporting documents such as payroll lists. The number of I-9 audits ICE conducts has varied widely in recent years, from more than 3,000 in 2013 to fewer than 400 in 2015.3
A: Employer “self-audits” are reviews of I-9 records initiated by the employer, purportedly for the purpose of verifying compliance with the employer’s obligations under law. Employers sometimes conduct self-audits in an attempt to disrupt organizing efforts by immigrant workers. Employers control all aspects of the process and timeline of a self-audit or re-verification process.4
A: The implications of an I-9 audit for organizers and union leaders are important. Employers routinely attempt to disrupt or undermine an organizing campaign or labor dispute by calling ICE with tips intended to trigger an audit, or by conducting a strategically timed “self-audit” or re-verification process. Either type of audit can result in termination of workers who are unable to produce required valid documents. Effective advocacy during I-9 audits must respond to the specific situations, and be grounded in a clear understanding of legal parameters, so advocates should familiarize themselves with the legal and regulatory background of I-9 audits in order to create the most effective response.
1. I-9 Central, www.uscis.gov/i-9-central, (2017).
2. Kunichoff, Y.,“Faced with I-9 immigration raid during negotiations, Chicago meatpacking workers walked off the job,” In These Times magazine, July 9, 2015.
3. Wickham, A., “I-9 Audits Experienced Steep Drop In Recent Fiscal Years,” Law 360, Nov. 2, 2015.
4. See ICE guidance for employers who conduct self-audits.
The administrative inspection process begins when a Notice of Inspection is served upon an
employer requiring the production of I-9 forms. By law, employers are given at least three business days to produce the forms. Often, ICE will request the employer provide supporting documentation, which may include a copy of the payroll, list of current employees, Articles of Incorporation and business licenses. See Appendix B for a sample Notice of Inspection and Appendix C for a sample letter of union response to Notice of Inspection.
ICE agents or auditors then conduct an inspection of the I-9 forms for compliance. ICE agents may find either technical or substantive violations in the records.
When technical or procedural violations are found, an employer is given 10 business days to make corrections. An employer may receive a monetary fine for all substantive and uncorrected technical violations. Employers found to have knowingly hired or continued to employ unauthorized workers will be required to stop the unlawful activity, may be fined, and in certain rare situations may be criminally prosecuted. Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be debarred by ICE, meaning that the employer will be prevented from participating in future federal contracts and from receiving other government benefits.
Fines range from $110 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. In determining penalty amounts, ICE considers five factors: 1) the size of the business, 2) the employer’s good faith effort to comply, 3) seriousness of violation, 4) whether the violation involved unauthorized workers, and 5) the employer’s history of previous violations. ICE will notify the audited party, in writing, of the results of the inspection, once completed. The following are the most common notices:
If the employer takes no action after receiving an NIF, ICE will issue a Final Order.
For the official ICE flow chart, visit www.ice.gov/factsheets/i9-inspection.
There are a number of government agencies that have a role to play in ensuring that I-9 audits are conducted in a manner that respects workers’ rights:
These agencies frequently overlap in their roles and their mandates can be competing, particularly in instances when management initiates immigration enforcement actions to stymie organizing and bargaining campaigns. Resolution of these conflicting interests is governed by the current Memorandum of Understanding between ICE, DOL, NLRB and EEOC, which indicates that ICE should refrain from engaging in immigration enforcement practices at a worksite that is currently the subject of a labor dispute investigation.5 See Appendix F for the 2011 MOU.
Under current protocols, ICE must check with DOL in advance of conducting any worksite investigation to be sure there is not a labor dispute in progress. DOL then confers with NLRB and EEOC to determine whether any of the labor and employment agencies are conducting active investigations of the employer. In the event of a live labor dispute, DOL instructs ICE not to initiate immigration enforcement actions that could interfere with the exercise of protected worker rights. Despite upfront agency efforts, the presence of a labor dispute often is discovered only after an audit has begun. ICE can suspend an audit that is under way, but has done so very rarely.
Organizers should note that the MOU defines labor disputes broadly, and asserts that immigration enforcement should not be used as a tool to prevent the exercise of protected rights, including the right to:
If ICE or an employer initiates an I-9 audit during an ongoing labor dispute, organizers should contact the relevant labor agency immediately and also contact ICE officials to emphasize the requirements of the MOU.
5. A copy of the MOU can be found at www.dol.gov/asp/media/reports/DHS-DOL-MOU.pdf and a copy of the addendum, including NLRB and EEOC, can be found at www.dol.gov/sites/default/files/documents/MOU-Addendum.pdf
The I-9 audit process often creates a lot of fear and uncertainty within a workplace or community.
In large part, this is due to intimidating practices on the part of the employer during the audit process, or due to a lack of information about the process. Therefore, it is important for labor organizers and advocates to stress the need for transparency and communication at each stage of the I-9 audit process. Below is a list of issues that advocates should address with workers facing an I-9 audit:
There also are certain things advocates should be sure to address with employers undergoing an I-9 audit. These key points are listed below:
Ideally, these issues will be formally addressed in a collective bargaining agreement. Below is a list of major bargainable provisions regarding I-9 audits. These provisions closely mirror the points listed above, but bargaining for them with the employer before an I-9 audit process will put the union and the workers in the best possible position when an audit occurs.
See Appendix X for more detailed language to address these contract provisions.
A: A “raid” is a term commonly used to describe an immigration enforcement operation where officers arrive unannounced at a home, workplace or other locations to arrest, detain and remove people. Officers conducting a raid usually arrive with armed weapons and may or may not be dressed “undercover.” An immigration raid at a workplace usually is conducted as part of an investigation of employer violations, such as the hiring of undocumented immigrants, the use of false documents, or in some cases human trafficking. During a workplace raid, immigration enforcement agents often confiscate workers’ documents, question workers about their immigration status, detain workers and take them into custody for further questioning or investigation, which can lead to deportation.
A: Yes. There are standing agreements between DHS and federal labor and employment agencies that provide guidance to prevent ICE interference in labor rights disputes.6 There also is standing ICE guidance stating that “[w]hen information is received concerning the unauthorized employment of aliens, consideration should be given to whether the information is being provided for the purpose of interfering with a genuine labor organizing campaign or employment dispute between workers and the management or ownership of the business or organization.7 Although the guidance does not prohibit ICE from conducting raids in places where there are labor disputes in all circumstances, it does require ICE to comply with its agreed-upon deconfliction policy with federal labor and employment agencies, and stipulates that ICE should cooperate in making workers who are detained available for interviews with those agencies, and should comply with all ICE policies regarding the treatment of victims and witnesses to crimes.8 Worker advocates and labor agencies have had some success in convincing ICE to restrict workplace actions during organizing or bargaining campaigns, but ensuring that these protocols are honored requires effective advocacy and engagement. ICE guidance has recognized that witnesses or victims of labor violations, as well as those engaged in labor disputes, should be considered for prosecutorial discretion, which is a form of relief from deportation.9 Often referred to as the “Victims Memo,” this guidance may continue to offer opportunities for relief for workers who have been detained in a workplace raid where there is an existing labor dispute.
A: Core federal labor law protections apply to all workers, including immigrants regardless of immigration status in the United States. Government agencies protect the rights of all workers, including U.S. citizens, and prevent downward pressure on labor standards by enforcing laws that protect the right to organize, to earn a minimum wage, and to have a safe and discrimination-free workplace.10 Although employers do it all the time, it is illegal to threaten or intimidate workers using their immigration status in retaliation for union activities or for filing wage theft or other claims. Defending the right of undocumented workers to organize and bargain collectively without retaliation is consistent with U.S. labor laws and necessary to lift standards and conditions for us all.
A: Regardless of the initial scope of an investigation, DHS has a practice of questioning a wide range of workers during an audit or raid. DHS has the discretion to focus on detaining only those workers they consider priority for deportation; however, the most recent statement of the priorities for removal is extremely broad. In his Executive Order on Enhancing Public Safety in the Interior of the United States, President Trump instructed DHS to prioritize all those who:
Despite the alarming breadth of these priorities, ICE is supposed to consider the “totality of the circumstances”11 in a particular case, not just the qualities that may mark an individual as a “priority.” As we track and respond to the implementation of these new priorities, community advocacy and public support will be critical to defend workers and influence ICE’s decision to deport or detain specific individuals.
A: During a workplace raid or operation, ICE also may visit the homes of workers, in particular workers whose records are found at the company but who are not at work at the time. If ICE agents visit a worker’s home, families are under no obligation to answer questions or even open the door unless the agents have a warrant signed by a judge. ICE is known to routinely question people who are present during operations—even if they have no relation to the investigation. If ICE is able to identify family members or other members of the household whom they deem a priority for deportation, there is a risk that they also could be detained and taken into immigration custody, sometimes referred to as “collateral arrests.”12
A: Historically, DHS guidelines have called for special consideration for people who are victims and witnesses to crimes, particularly victims of domestic violence and human trafficking. Known as the Victims Memo, this guidance protected “plaintiffs of non-frivolous lawsuits regarding civil rights or civil liberties violations” and “individuals engaging in a protected activity related to civil or other rights (for example, union organizing or complaining to authorities about employment discrimination or housing conditions)” in a dispute with an employer, landlord or contractor.13 If ICE is responsible for interfering in such a dispute or activity by conducting a raid or arresting or detaining a worker, this guidance may serve as precedent and potentially offer opportunities for relief for workers. It is the role of advocates and organizers to make sure that immigration agents are aware of an individual’s participation in a labor or civil rights case, and to hold ICE accountable for preventing or rectifying any interference in labor organizing or disputes.
6. Department of Labor, “Revised Memorandum of Understanding Between the Department of Homeland Security and the Department of Labor Concerning Enforcement Activities at Worksites,” and the addendum.
7. Edge, P., “Guidance on Civil Inspections of the Employment Eligibility Verification Form (Form I-9) During Labor Disputes,” U.S. Immigration and Customs Enforcement, May 10, 2016.
8. Smith, R., Avendano, A. and Martínez Ortega, J., “Iced Out: How Immigration Enforcement Has Interfered With Workers’ Rights,” National Employment Law Project, AFL-CIO and the American Rights at Work Education Fund, October 2010.
9. ICE June 17, 2011, memo, “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs”.
10. Smith, R., Avendano, A. and Martínez Ortega, J., “Iced Out: How Immigration Enforcement Has Interfered With Workers’ Rights,” see Footnote 8.
11. Johnson, J., “Policies for Apprehension, Detention, and Removal of Undocumented Immigrants,” Department of Homeland Security, Nov. 20, 2014.
12. Foley, Elise, “Immigration Advocates: Ice is ‘Out of Control’,” Oct. 8, 2014, The Huffington Post.
13. ICE June 17, 2011, memo, “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs,” see Footnote 9.
This content is available in the full toolkit.
Another notice of concern to labor advocates is the potential resumption of the Social Security Administration’s “no-match” letters. These letters indicate to employers that the Social Security number provided by an employee does not match the SSA’s records, and thus the employee is not receiving the benefit of Social Security withholdings. The “no-match” letters issued by the SSA are not intended to serve as constructive knowledge to employers that an employee is not authorized to work in the United States. However, when conducting I-9 audits, ICE agents frequently request copies of “no-match” letters received by employers.
The “no-match” letter itself states that the notice alone cannot provide the basis for adverse action against an employee. Instead, the employer is instructed to provide the employee with a “reasonable” amount of time to resolve the discrepancy with the SSA. The Department of Justice’s Immigrant and Employee Rights Section suggests that 120 days is an appropriate amount of time18 (see Appendix U, Sample “No-Match” Letter). “No-match” letters have not been issued in several years, but current or future administrations may revive them and/or revise this version. Additionally, current or future administrations also may interpret related policies differently. For a list of resources on this matter, visit www.justice.gov/crt/ssa-no-match-guidance-page.
Employers also may verify a worker’s Social Security number assignment through the SSA database and generate a “no-match” letter. Employers verify through the SSA’s internet-based systems: the Social Security Number Verification Services or the Consent-Based Social Security Number Verification, which is when the employer has a third party check the SSN (see Appendix W, Sample Letter Regarding SSN Verification/Background Checks).
Practitioners should be aware of two decisions in the case law that guide potential responses to SSA no-match letters. (See Appendix V for a sample letter from a union to an employer about an SSA “no-match” letter.)
Ideally, these issues will be addressed formally in a collective bargaining agreement. Below is a list of major bargainable provisions regarding “no-match” letters. These provisions closely mirror the points listed above, but bargaining for them with the employer before a letter is received from SSA will put the union and the workers in the best possible position when it occurs.