Too often, workplace raids and audits are used as cover to suppress the rights of working people who speak up for safe, just and dignified working conditions. Below are many of the materials and tools we developed to prepare for, and resist, the unjust workplace raids and audits that undermine the rights of all workers.
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.
II. Frequently Asked Questions About I-9 Audits
Q: What is an I-9 audit or a “paper raid”?
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.
Q: What is the process when ICE decides to audit an employer?
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
Q: What is an employer “self audit”?
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
Q: What does an I-9 audit mean to labor?
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.
III. What Are the Steps in an I-9 Audit?
1. Notice of Inspection
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.
2. Inspection of Forms
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:
- Notice of Inspection Results—also known as a “compliance letter,” used to notify a business that they were found to be in compliance with I-9 requirements.
- Notice of Suspect Documents—advises the employer that, after reviewing the forms and documentation, ICE has determined that an employee is unauthorized to work and notifies the employer of the possible criminal and civil penalties for continuing to employ that individual. ICE provides the employer and employee with an opportunity to present additional documentation to demonstrate work authorization if they think the finding is in error. See Appendix D for a sample Notice of Suspect Documents.
- Notice of Discrepancies—advises the employer that, based on a review of the I-9 forms and documentation submitted by the employee, ICE is unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
- Notice of Technical or Procedural Failures—identifies technical violations and gives the employer 10 business days to correct the forms. After 10 business days, uncorrected technical and procedural failures will become substantive violations.
- Warning Notice—issued when substantive verification violations were found, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.
- Notice of Intent to Fine—may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations. NIF notices are provided with charging documents that identify the employer violations. The employer either may negotiate a settlement with ICE or request a hearing before the Office of the Chief Administrative Hearing Officer within 30 days of receipt of the NIF. If a hearing is requested, OCAHO assigns the case to an administrative law judge and sends all parties a copy of a Notice of Hearing and the government’s complaint, thus setting the adjudicative process in motion.
- Notice of Hearing—spells out the procedural requirements for answering the complaint and the potential consequences of failure to file a timely response. Many OCAHO cases never reach the evidentiary hearing stage because the parties either reach a settlement, subject to the approval of the ALJ, or the ALJ reaches a decision on the merits through dispositive prehearing rulings.
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.
IV. What Happens if an I-9 Audit Occurs While Workers Are Exercising Their Rights?
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:
The Department of Homeland Security’s U.S. Immigration and Customs Enforcement Division is responsible for the enforcement of U.S. immigration law. Homeland Security Investigations is the sub-agency within ICE that conducts the I-9 audit process.
The Department of Labor, through its various departments, is responsible for enforcing labor standards.
The Department of Justice’s Immigrant and Employee Rights Section (formerly known as the “Office of Special Counsel for Immigration-Related Unfair Employment Practices”) is responsible for enforcing the anti-discrimination and document abuse provisions of the Immigration Reform and Control Act.
The National Labor Relations Board is responsible for enforcing the National Labor Relations Act and ensuring that workers have the right to join together to seek better pay or working conditions from their employer through collective bargaining or other lawful means.
The Equal Employment Opportunity Commission is responsible for enforcing Title VII of the Civil Rights Act prohibiting discrimination based on race, color, gender, national origin and religion, and other federal antidiscrimination laws.
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:
Form, join or assist a union or labor organizations;
Be paid minimum or contractually stipulated wages and/or overtime;
Have a safe workplace;
Receive compensation for work-related injuries;
Be free from discrimination based on race, gender, age, national origin, religion, disability or sexual orientation;
Advocate publicly for better working conditions or for other rights relating to employment; or
Be free from retaliation for seeking to vindicate these rights.
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
V. Guidance on the I-9 Process for Organizers and Advocates
TIPS FOR TALKING TO WORKERS
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:
- Remind workers not to panic. If workers have concerns about the I-9 audit, they should immediately contact a union representative or a workers’ rights organization.
- Remind workers they have the right to remain silent. Workers have the right to choose not to speak with their employer about their immigration status. Workers who are nervous about speaking with their employer should request that a union representative or workers’ rights advocate be present at any meetings regarding work authorization status.
- Workers who are informed that ICE has found a discrepancy in their work authorization documents should request notification of the basis for the discrepancy in writing and request as much time as possible to resolve the issue.
- If workers have valid documents that could help resolve the issue, they should present updated documents to their employer.
- It is important to inform workers that the employer then will send those updated documents to ICE and ICE may ask to interview the worker. If agents discover during the interview that the worker is unauthorized to work, they can arrest the worker at the interview.
- If ICE finds a problem with a worker’s documents and that worker decides not to present new documents, the worker can be terminated.
TIPS FOR TALKING TO EMPLOYERS
There also are certain things advocates should be sure to address with employers undergoing an I-9 audit. These key points are listed below:
- Communicate: Employers should meet with union members and representatives to let them know about the process. Employers should inform all workers with a union representative present at this meeting. In this meeting, the employer should inform all workers they are undergoing an ICE audit and they should provide proof of the initiation of an I-9 audit. Employers should inform workers about how the process works and what they can expect if ICE officials detect problems. Employers should inform individual workers promptly and in writing of any issues that ICE identifies.
NOTE: We suggest the union send a letter to the employer at the outset of an ICE audit to clarify expectations. If an audit is initiated by the employer, rather than ICE, workers may consider filing grievances or other collective strategies to get the employer to stop the re-verification process. See Appendix E for suggestions.
- Treat Workers Equally: Employers should implement the same timeline and requirements for all employees to update documents. All employees should be subject to the same I-9 audit regardless of immigration status, national origin, race, color, sex or religion. Employers cannot force workers to discuss their immigration status. Employers cannot require that employees use certain documents to re-verify their work authorization status. This practice is called “document abuse” and will subject the employer to charges of discrimination.
- Provide a Reasonable Amount of Time for Re-verification: Employers should provide workers a reasonable amount of time to correct work authorization problems identified during the I-9 audit.
- Compensate: If an employee chooses not to provide updated documents, employers still should compensate workers for any outstanding back pay, vacation time accrued or bonuses that they otherwise would be entitled to receive. If an employee does provide corrected documentation, that worker should be permitted to maintain his or her former position without suffering any loss in seniority.
MAJOR CONTRACT PROVISIONS REGARDING I-9 AUDITS
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.
- Require employers to hold a meeting once they receive Notification of Inspection from ICE to inform workers about the process and their rights.
- Require employers to notify the union and workers in writing of discrepancies found by ICE during the I-9 audit.
- Require employers to allow workers a reasonable amount of time to correct discrepancies in work authorization documents. Define a reasonable amount of time as between 90 and 120 days.
See Appendix X for more detailed language to address these contract provisions.
VI. Frequently Asked Questions About Workplace Raids
Q: What is a workplace immigration raid?
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.
Q: Is ICE supposed to respect union negotiations and worker organizing?
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.
Q: Do undocumented workers have labor rights? Can my union advocate for them?
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.
Q: Which workers are most likely to be targeted for deportation?
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:
- Have been convicted of any criminal offense;
- Have been charged with any criminal offense, where such charge has not been resolved;
- Have committed acts that constitute a chargeable criminal offense;
- Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
- Have abused any program related to receipt of public benefits;
- Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
- In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
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.
Q: Is a worker’s family or home at risk during an ICE workplace operation or raid?
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
Q: How does involvement in a labor or civil rights issue affect an individual’s deportation case or detention?
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.
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.
13. ICE June 17, 2011, memo, “Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs,” see Footnote 9.
VII. Preparing for a Possible Workplace Raid
IX. Sample Union Contract Language on Immigration Protections
Appendix A: I-9 Requirements—Document List
Appendix B: Sample Notice of Inspection
Appendix C: Sample Letter Union Response to Notice of Inspection (available in the full toolkit)
Appendix D: Notice of Suspect Documents
Appendix E: I-9 Audit Chart (available in the full toolkit)
Appendix F: 2011 Revised MOU
Appendix G: Rapid Response Team—Roles and Responsibilities (available in the full toolkit)
Appendix H: Know Your Rights and Rapid Response Planning Training (available in the full toolkit)
Appendix I: Know Your Rights Flier—English and Spanish
Appendix J: Know Your Rights Palm Card—Multiple Languages
Appendix K: Safe Workplace Poster—English and Spanish
Appendix M: Form G-28
Appendix O: Sample Power of Attorney (available in the full toolkit)
Appendix Q: Action Plan—Methodological Guide (available in the full toolkit)
Appendix R: Post-Workplace Raid Questionnaire for Observers
Appendix S: Post-Workplace Raid/I-9 Audit Intake (available in the full toolkit)
Appendix T: Sample Letter from Union to Local ICE Field Office of Enforcement (available in the full toolkit)
Appendix U: Sample “No-Match” Letter Sent to Employers
Appendix V: Sample Letter Regarding SSA “No-Match” Letters(available in the full toolkit)
Appendix W: Sample Letter Regarding SNN Verification/Background Checks (available in the full toolkit)
Appendix X: Examples of Specific Contract Language Regarding Immigration Matters (available in the full toolkit)
XI. Special Thanks
This toolkit could not have been possible without guidance and technical support from:
United Food and Commercial Workers (UFCW)
California Labor Federation
Los Angeles County Federation of Labor
Orange County Labor Federation
National Day Laborer Organizing Network
National Immigration Project of the National Lawyers Guild
Weinberg, Roger & Rosenfeld
Special thanks to the AFL-CIO team that led this effort:
Neidi Dominguez, Rosa Lozano, Gloria Alvarado, Tamara Brummer, Chloe Osmer, Kelly Rodriguez, Matthew Ginsburg, Shannon Lederer and Robin Foster.