DENVER — Every employer should have a law enforcement response plan, experts said Friday at the American Bar Association’s annual labor and employment law conference.
This is generally a best practice, said John Mazzeo, former assistant chief counsel at the U.S. Department of Homeland Security, as there’s always the possibility that state or local law enforcement could visit a worksite, seeking to arrest an employee for any number of reasons. But proactive response plans may be particularly crucial as the Trump administration leans on workplace raids to meet immigration policy goals, speakers noted.
To that end, Mazzeo and his co-panelists offered attendees six tips for preparing a response plan.
1. Identify and train the first point of contact
An employer should identify the person most likely to be the first point of contact for law enforcement — the person who sits at the front desk, perhaps — and train them on what to say, how to say it and who to call, said Mazzeo, now senior director, associate general counsel at Vertical Screen, Inc.
They also should be trained to “treat ICE like a vampire,” recommended Jonathan Grode, U.S. practice director and managing partner for law firm Green and Spiegel. In other words, “don’t invite them in,” he said. “If you do, they have all their rights and powers. If you restrict where they can go, you can mute their power a little bit.”
2. Prep an intermediary
The person receiving the front desk’s call will likely be someone on-site and they should be trained on a communication plan, the speakers said.
This could be a plant manager, for example, who is trained to diffuse the situation while they get legal counsel on the phone.
3. Draw up a map — and use it
Employers and their legal counsel should create a formal document marking which parts of its site are public and which are private, Mazzeo said. If a building is surrounded by a fence and can’t be entered without buzzing in, the employer may aim to take the position that it’s all private.
In other buildings, it may be that the area beyond the reception area — which can only be accessed via an employee badge swipe, for example — is private. In businesses such as restaurants, lines between public and private spaces sometimes aren’t clear and can create issues that employers will need to work through with counsel, the panelists said.
Employees must be well-trained on these designations for them to be effective, however, Mazzeo noted; if the janitorial staff sometimes props a door open when the weather is nice, the employer may not be able to argue the area inside is private.
4. Ensure HR has a response plan
An employer’s HR department should have its own response plan for ICE questions, Mazzeo recommended.
Those in the department should know who will speak with ICE and how they will handle any requests from agents. The C-suite may even wish to go through a tabletop exercise.
5. Conduct an internal audit
Employers should proactively audit themselves, Mazzeo said. Form I-9s are a wealth of information — “a law enforcement treasure box” — so make sure your house is in order, he said.
Employers may want to check that forms were completed properly and that identification documents appear authentic, all with legal counsel to ensure the audit is privileged.
6. Consider the use of cameras
Employers may want to think about the role of video recordings – both that of employees and an employer’s security system.
It’s “a whole new world” now that everyone has the ability to record video at almost any time, Mazzeo said. And while video can serve as a record of what happened and whether ICE actions aligned with a warrant, employees also must be careful because the agency is aggressively bringing obstruction charges, he said. Individuals should be careful not to block doorways, for example.
An employer’s security cameras may be more useful as they’re likely always running, often located at doors and time stamped, Mazzeo said. That could come in handy if, for example, ICE were to enter a space that’s beyond the scope of its warrant, he said. The White House is influencing the behavior of agents on the ground, he said, “but all of those things are going to get tested in court sooner or later.”
